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SENATE. 

/lL 

1st Se}fsion, J 

1 

IN EXECUTIVE SESSION. 

1 ^ 




\ 


NOMINATION OF LOUIS D. BRANDEIS. 


June 1, 1916.—Ordered to be printed and injunction of secrecy removed. 

[r. Chii.ton, from the Committee on the Judiciary, submitted the 

following 

REPORT. 

[To accompany the nomination of Louis D. Brandeis.] 

The Committee on the Judiciary, to whom was referred the nomi- 
i.ation of Louis D. Brandeis, of Massachusetts, to be associate justice 
of the Supreme Court of the United States, vice Joseph Eucker 
■ lamar, deceased, beg leave to report it back with the recommenda¬ 
tion that it be confirmed. 

The nomination was referred to the Committee on the Judiciary 
n January 28,1916. On January 31 the committee referred it to the 
ollowing as a subcommittee: Messrs. Chilton (chairman), Fletcher, 
V7alsh, Clark of Wyoming, and Cummins. 

The subcommittee held hearings, made necessary by a protest 
gainst confirmation of the nomination, which began on February 
916, and continued from time to time until March 15, 1916. On 
'ebruary 16 Mr. Works was appointed on the subcommittee in the 
lace of Mr. Clark of Wyoming. 

. On April 3 the subcommittee made a favorable report to the entire 
3 mmittee, recommending confirmation of the nomination. There 
^as a mmority report, however, against confirmation, made by 
lessrs. Cammins and Works. The majority views of the subcom- 
littee are set out at length in the separate reports of the majority 
lembers of the subcommittee. Mr. Chilton’s views were concurred 
VI by Mr. Fletcher, and Mr. Walsh filed a separate report. 

All of t'lese views of the members of the subcommittee are printed 
a Senate Document No. 409, Sixty-fourth Congress, first session, and 
vour committee herewith adopts the statements and views of Mr 
diilton and of Mr. Walsh and makes the same a part of this rep^ 

•iS follows- 







\ 



.\ 



DOMINATION OF LOFIS D. BEANOEIS. 


Mr Chilton, from the subcommittee of the Committee on the 
Judiciary, submitted the following 


VIEWS 


[To accompany the nomination of Louis D. Brandeis.] 


To the Committee on the Judiciary, 

United States Senate: 


As heretofore announced to the Committee on the Judiciary, your 
subcommittee decided to have open hearings, which were begun on 
February 9, 1916,.and continued from time to time until March 15, 


1916. 


Very soon after your subcommittee was organized a protect against 
the confirmation was filed, signed by the following-named gentlemen: 


Charles S. Rackemann. 
Harrison M. Davis. 
Joseph Sargent. 

A. l.awrence Lowell. 
John Noble. 

Charles F. Adams. 

I. Tucker Burr. 

C. Minot Weld. 
Nathaniel H. Stone. 
Felix Rackemann. 
Arthur Lyman. 

Henry S. Grew. 

George P. Gardner. 
Roger Walcott. 
Pierpont L. Stackpole. 
Francis Peabody. 
Edmund K. Arnold. 
Willard B. Luther. 
Charles A. Williams. 
Moses Williams. 


Reginald H. Johnson. . 
Henry Ware. 

J. L. Thorndike. 

Julian (’odman. 

Richard C. Storey. ' 

Fred ( 3 . Bowditch. 

W. L. Putnam. 

Edward H. Warren (Prof.). 
Roger S. Warner. 

James M. Newell. 

William S. Hall. 

Clifton L. Bremer. 
Lawrence Minot. 

Henry E. Edes. 

Hollis R. Bailey. 

Edward S. Dodge. 

F. Walker Johnson. 

George B. Dabney. 

Francis R. Boyd. 

J. A. Lowell Blake. 


Louis Bacon. 

Lawrence P. Dodge. 
George B. Harris. 

Eugene J. Fabens. 

Charles H. Fiske, jr. 
Harold Jefferson Coolidge. 
P. T. Jackson, ir. 
Augustus P. Loring. 
William W. Vauglm. 
Samuel D. Parker. 

Thomas N. Perkins. 

R. W. Boyden. 

Henry L. Shattuck. - 
A. R. Graustein. 

James D. Colt. 

Edmund A. Whitman. 
William C. Incicott. 
Albert E. Pillsbury. 
William V. Kellen. 
Frederic M. Stone. 


Mr. Austen G. Fox, assisted by Mr. Kenneth M. Spence, appeared 
on behalf of those signing the petition, and the committee requested 
Mr. George W. Anderson to represent the committee in bringing out 
the fapts. Quite a number of other protests and many letters of 
commendation of the nominee were Sled before the committee in the 
shape of letters and telegrams, some to the committee and some to 
"ferent members, all of which are made a part of the report.' 


D. Of D. 

OCT 31 mr 









NOMINATION OF LOUIS D. BRANDEIS. 


5 


As to every charge made against the nominee, by the protesting 
committee or contained in rumor or which in any way came to the 
knowledge of your committee, we have sent for those alleged to have 
knowledge and have examined such witnesses. All the testimony of 
the 43 witnesses examined was taken down by a stenographer, was 

E rin ted, and is contained in one volume of 1,316 pages, which is now 
efore the Committee. The evidence relates to various charges 
reflecting upon the professional conduct of the nominee, as well as his 
standing and general reputation. 

On pages 884 to 887, 933 and 934, and 1225 and 1226 may be 
found a summary of the matters as to which the proof, outside of 
opinion evidence, relates. These charges will now be taken up, one 
at a time, and the proof relating thereto analyzed. 

WARREN CASE. 

It is charged that Mr. Brandeis consciously advised and assisted 
Samuel D. Warren in a breach of trust in fraud of his brother, 
Edward P. Warren. This charge is wholly unfounded, and was rec¬ 
ognized to be by the leading counsel for Edward P. Warren in the 
suit concerning this trust (284, 860, 1164). The propriety of Mr. 
Brandeis’s conduct in this case was also recognized by one of his 
leading opponents who was counsel for other beneficiaries of the 
trust (278). In May, 1888, Samuel D. Warren and Mr. Barndeis 
were partners in the practice of law and had been for about 10 years. 
In May, 1888, Mr. Warren’s father, Samuel D. Warren the elder, died, 
leaving a widow and five children, entitled under his will to his prop¬ 
erty in their own right without the intervention of any trustees—the 
widow to five-fifteenths and each child to two-fifteenths. 

Mr. Warren the elder owned paper mills in Maine, valued at nearly 
$2,000,000. These paper mills were conducted by the firm S. D. 
Warren & Co., composed of himself and Mortimer B. Mason, who had 
been with him for 18 years and a partner for 6 years. One son, 
Fiske Warren, was employed in the business and had been for about 
five years. Warren & Brandeis had been attorneys for S. D. Warren 
& Co. before the elder Warren’s death, and were counsel for the execu¬ 
tors of his will. They had no other connection or relation with Ed¬ 
ward P. Warren, a son then 29 years of age. The Warren family was 
beheved to be entirely harmonious at this time, and to desire to keep 
the mills intact as a family property. There was no member of the 
family fitted by temperament or desire to take the active headship 
of the business except Sarnuel D. Warren. They aU lived in or near 
Boston except Edward P. Warren, who was in England. Mr. Mason 
was regarded by all as essential to the business because of his expe¬ 
rience and ability. He was receiving one-sixth of the profits of opera¬ 
tion of the mills, and believed that he should receive under the changed 
condition one-fourth of the profit. He had earned in the last two 
years $76,000 and $68,000, respectively, as his share of the profits. 
This is a larger amount than he averaged during the ensuing 20 years 
under the plan that was adopted. This plan was to have the real 
estate vested in trustees who should lease to an operating concern 
which should pay a fixed rental of 6 per cent and an additional 
amount equal to one-half the profits of the operating concern. The 


4 


NOMINATION OF LOUIS D. BRANDEIS. 


trustees selected were Samuel D. Warren and Mr. Mason and Mrs. 
Warren, the widow, The operating concern was a new partnership 
of Samuel D. Warren & Co., composed of Mr. Mason, with one-half 
interest; Samuel D. Warren, with one-third interest; and Fiske 
Warren, with one-sixth interest. The plan was elaborately discussed 
(842, 858) among the members of the family, all of whom were per¬ 
sons of intelligence, and was agreed to before the trust was created. 
The papers to give legal effect to the plan were drawn and executed 
the end of May, 1889, and sent to Edward P. Warren in a letter ex¬ 
plaining these terms (84p. He executed them, and the business was 
carried on in accordance with this arrangement for a period of over 
20 years. 

Full accounts were rendered annually, and they show the profits 
resulting to the partnership from operating the mills under this lease 
and the income resulting to the trust (858, 519-607). 

Mr. Warren retired from the practice of law and from the firm of 
Warren & Brandeis in 1889. Mr. Brandeis and his firm continued to 
be the legal adviser of the firm of Samuel D. Warren & Co. and of the 
trustees throughout the ensuing 20 years. They also advised and 
acted for the various members of the family from time to time, and 
it was weU known to all that they were so acting. No dissension arose 
until after the death of Mrs. Warren in 1901. This left a vacancy in 
the board of trustees. Henry Warren, next in age to Samuel D. 
Warren, had died. The declaration of trust provided for the appoint¬ 
ment of a trustee, preferably from among the children of the elder 
Warren, and not a member of the firm. This limited the preference 
to Edward P. Warren or his sister, Cornelia Warren. Mr.. Mason and 
Mr. Samuel D. Warren heheved that Edward P. Warren, on account 
of his temperament and the fact that he was hving in England, was 
not a desirable trustee; and it was proposed immediately after the 
mother’s death that Corneha Warren be appointed a trustee, but 
Edward P. Warren opposed this. The next year it was proposed 
that Fiske Warren be appointed. This was also opposed by Edward 
P. Warren. Fiske Warren had retired to a considerable extent from 
active business, and his proportion of the profits had been reduced 
from 16§ per cent to 5 per cent, and soon thereafter to 2^ per cent. 

In 1903 Edward P. Warren retained William S. Youngman, who 
has testified in the present hearing (461-518, 1286-1296, 1306-1307). 
He soon after began investigations and in 1906 rendered an elaborate 
report to Edward P. Warren thereon (861), approving the details of 
the accounts, but claiming that the plan had worked too much to 
the advantage of Samuel D. Warren & Co., that too much of the 
income of the trust had been devoted to the improvement of the 
properties instead of to the payment of the beneficiaries, and com¬ 
menting on the division between the repair account, which was a 
charge of operations, and the improvement account, which wae a 
capital charge against the trust. 

The trust instrument originally provided that the trustees might 
retam one-third of the net income for improvements. This was 
found to be inadequate, and by informal agreement reached in 1890, 
the amount was increased to one-half. All the beneficiaries had 
agreed to this. The fact was recited in the reports from year to 
year. 




NOMINATION OP LOUIS D. BKANDEIS. 


5 


The profits which the partners had received from the operation 
of the mill had not exceeded, on the average, those to be expected 
from the condition of the business as it had been estimated in 1889 
in the estimates submitted to the beneficiaries before the plan was 
agreed to (842). 

The division between repairs and improvements had been fairly 
and honestly made (862). 

After 1906, negotiations continued relative to the appointment of 
a new trustee, but no satisfactory agreement could be reached. 
Edward P. Warren, after having urged his own appointment, urged 
the appointment of Mr. Youngman. Outsiders also were suggested. 

At the end of 1909 suit was brought by Edward P. Warren against 
Samuel D. Warren, seeking an accounting and the removal of Sam¬ 
uel D. Warren as a trustee (894-933). Comeha Warren, whose inter¬ 
ests were the same as Edward P. Warren's, and Fiske Warren, whose 
interests were nearly the same, opposed the suit, as did their coim- 
sel (915). Brandeis, Dunbar & Nutter acted for Samuel D. Warren, 
and one of the members of the firm tried the case up to the death of 
Samuel D. Warren, who was the first witness. Nothing developed 
to the discredit of Mr. Warren or Mr. Brandeis in any way, and any 
lack of good faith on their part was disclaimed in the suit itself by 
counsel for Edward P. Warren (277, 284, 860, 1164). Some months 
after the death of Mr. Warren the others in interest bought out the 
share of Edward P. Warren in the estate at what was beheved by 
them to be no more than the share was worth, making no allowance 
for any claims made in the suit (278, 867). 

Samuel D. Warren was a man of high character and intelligence. 
The drafts of the original papers for the formation of the trust and 
the lease were in his handwriting (841). Mr. Brandeis advised about 
the matter and took part in the conveyances which were made. 
The negotiations between the different members of the family were 
conducted directly between them. Apparently aU communications 
with Edward P. Warren were from Samuel D. Warren or other mem¬ 
bers of the family. No occasion arose for the intervention of coun¬ 
sel between the different members of the family at the time the trust 
was created or at any time up to the time that Mr. Youngman was 
employed by Edward P. Warren. The original agreement was a 
fair one (277, 278) and worked out fairly and was justly and honestly 
administered, and the share of Edward P. Warren increased enor¬ 
mously under the administration of his brother and the other trustees 
(867, 915). 

Mr. Brandeis exerted no improper influence in the matter (881). 

When what was believed to be a wholly groundless and unwarranted 
attack was made upon Mr. Warren and his removal as trustee sought, 
it was certainly the province of counsel for the trustee, who had been 
such during the entire administration of the trust, to support him as 
counsel in defending the integrity of his administration of the trust 
(1259). Such knowledge as counsel for the trustee and his firm had, 
came to them from the trustee and his firm in that employment, 
and the trustee and his firm were entitled to the full benefit of that 
knowledge. If they had emploved new counsel, they could rightly 
ask that everything known to their existing counsel should be com- 
mimicated to the new coimsel. It would have been virtually a 





f) NOMINATION OF LOUIS D. BRANDEIS. 

desertion if the counsel for the trustee and his firm had failed to act 
(1259). 

Three out of the four beneficiaries opposed the litigation and 
desired the retention of Mr. Warren as a trustee. 

No claim was ever made in the case but that the defense ought 
to be made by Brandeis, Dunbar & Nutter on Mr. Warren’s behalf 
(1298). 

As to the transactions which led up to the suit, the leading counsel 
for the plaintiff said that he did not claim that the arrangement was 
ever gotten up, either by Mr. Br.andeis or Mr. Warren, for the purpose 
of violating a trust (1164). 

In order to condemn IMj. Brandeis for anything done in this whole 
matter one must emphasize every suspicion and minimize the promi¬ 
nent facts shown by the weight of the evidence. I agree with Mr. 
Whipple, the leading trial lawyer for Edward P. Warren, the complain¬ 
ing heir, that if Mr. Brandeis thought that Edward had assented 
(and how could a reasonable man assume otherwise?), “there was no 
violation of trust; and there was no moral wrong” (284). 

NEW YORK & NEW ENGLAND RAILROAD MATTER. 

It is charged that Mr. Brandeis was engaged at the instance of the 
New York, New Haven & Hartford R. R. to wreck the New York & 
New England Railroad Co. The facts do not sustain this charge. 

At about the beginning of 1892 Austin Corbin, of New York, was 
the president and director of the New York & New England Rail- 
roacf (404). The railroad was in a very bad financial condition and 
already wrecked. Corbin took the presidency with a view to reha- 
bifitating it. He also got friends to invest in stock of the company 
and he expected them to become directors (405). Several of the 
directors who he thought were acting improperly declined to resign. 
These directors were represented in the later ligitation by Mr. Storey 
(405). Accordingly, Mr. Corbin decided to resign himself, as he 
refused to stay on the board of directors with them. He believed 
they were using their position to benefit themselves at the expense 
of the road (405.) On resigning, Mr. Corbin consulted William J. 
Kelly, his attorney, who is now one of the judges of the Supreme 
Court of New York. Mr. Kelly employed Mr. Brandeis to institute 
suits to have the railroad put in the hands of a receiver in Massa¬ 
chusetts, Connecticut, and New York. These suits were never filed, 
because the action of the directors necessitated other proceedings. 
They declared they were about to pay unearned dividends, and the 
suits were immediately brought and injunctions were obtained to 
prevent this (405). They also attempted to issue bonds beyond the 
legal limit and suits were brought to prevent this. These also pre¬ 
vailed (405). Suits also were brought to prevent leases made to the 
company by these directors of railroads claimed to be owned by 
these directors and. leased at an improper rental (409). These suits 
were brought on behaK of all stockholders, of whom Mr. Corbin was 
one, and particular stockholders were selected as plaintiffs in ord :r 
to give the Federal courts jurisdiction (411). Mr. Corbin’s connec¬ 
tion with the suits was well known. The hostile directors knew it 
well (411). He indemnified the plaintiffs (411). 


NOMINATION OF LOUIS D. BKANDEIS. 


7 


All the suits were brought between April and August, 1892 (422). 
It was alleged in the suits that they were brought at the expense of 
persons other than the plaintiffs and to depress the credit of the 
railroad, and this was held to be immaterial (427). 

Subsequently, in an investigation before a committee of the Legis¬ 
lature of Massachusetts in May, 1893, it was claimed on behalf of the 
New York & New England Railroad Co., by Mr. Moorefield Storey, 
that these suits had been instigated by the New York, New Haven & 
Hartford Railroad Co. or in its interests. Mr. Brandeis then testified 
that he had no knowledge of any such connection. Mr. Josiah H. 
Benton, the attorney for the New York, New Haven & Hartford 
Railroad Co., stated that there was no such connection (439). 

Judge Kelly now says that in the latter part of 1893 he learned 
from Mr. Corbin that he had concluded that the chance of reor¬ 
ganizing the road was gone, and that the first mortgage was inevitably 
going to be foreclosed, and that he was disposed to give up the 
Rtigation; and later he learned from Mr. Coimin that certain men 
interested in the New York, New Haven & Hartford Railroad Co., 
which was interested in the first-mortgage, bonds, had expressed a 
desire that litigation should not be given up and that they would 
reimburse Mr. Corbin for expenses thereafter (412). 

!Mr. Brandeis was not employed to wreck the New York & New 
England Railroad (406), and had no knowledge that the New York, 
New Haven & Hartford Railroad Co. was interested in the litigation 
when he testified in May, 1893. His last substantial work in the 
cases was done in June, 1893 (700). He was paid by Judge Kelly, 
who received the money therefor from Mr. Corbin (408). 

It was said in the present hearing that the suits were begun at the 
instance of the New York, New Haven & Hartford Railroad Co. (267, 
415), and that the United States, in the recent suit against the direc¬ 
tors of the New York, New Haven & Hartford Railroad Co., had so 
contended. The fact is to the contrary. The Government’s con¬ 
tention was in accordance with the foregoing statement from Judge 
Kelly, namely, that they were started by Mr. Corbin and that sub¬ 
sequently the directors of the New York, New Haven & Hartford 
Railroad Co. took them over (419, 700). 

There was nothing to indicate that the suits were not meritorious 
or brought for the purpose for which they purported to be brought. 
They were found to be weU grounded as far as they progressed. 
Since it appears that the Massachusetts Legislature investigated this 
matter 23 years ago, and that now Judge Kelly, chief counsel, acquits 
him of any purpose to wreck the railroad, and that Josiah H. Benton, 
chief counsel of the New Haven & Hartford Railroad, testifies that 
that railroad had no connection with the suits brought by Mr. Brandeis, 
I can find neither reason nor excuse to justify anything but an 
unequivocal vindication of the nominee from this charge. 

DINGLEY BILL WOOL DUTY. 

No charge touching Mr. Brandeis appears to have been suggested 
in this matter. 

In 1908 charges were made that William Whitman had, in 1897, 
secured an exorbitant duty on wool tops, to the detriment of other 
woolen manufacturers in the association which Mr. Whitman repre¬ 
sented (962).' 





8 


NOMINATION OP LOUIS D. BKANDEIS. 


Mr. Whitman did not know Mr. Brandeis in 1897, or have any¬ 
thing to do with him prior to 1905 (690), and Mr. Brandeis has never 
acted for klr. Whitman in any tariff matters (973). 

When the charges above stated were made against Mr. Whitman in 
1908, he consulted with Mr. Brandeis with reference to making an 
answer to these charges. Mr. Whitman stated his case to Mr. 
Brandeis and Mr. Brandeis assisted him in preparing a reply (961). 
In view of the testimony of Mr. Whitman in the lobby investigation 
(of 1913), the committee, on its own motion, subpoenaed Mr. Whit¬ 
man and Mr, IngersoU in order to find out all the facts concerning 
Mr. Brandeish appearance before the congressional committee having 
in charge the Stevens bill, and the true history of Mr. Whitman’s 
defense to what are known as the North charges.” 

I fail to find anything in either which reflects upon the nominee. 

LEGISLATION CONCERNING INTOXICATING LIQUORS. 

No charge has been made against Mr. Brandeis with respect to 
this matter. It appears that 25 years ago he appeared in opposition 
to certain legislation relative to the sale of intoxicating liq^uors, and 
in support of certain other legislation then under consideration before 
the Massachusetts Legislature, and that this appearance was in behalf 
of associations engaged in the sale of liquor (1055). 

This was in a State that never has had a prohibitory law, but has 
long had laws regulating the liquor traffic. There is nothing to in¬ 
dicate that Mr. Brandeis’s attitude was or is favorable or adverse to 
a prohibitory law in a community where public sentiment wants it. 

There is nothing to indicate that his attitude 25 years ago was in 
any way favorable to the intemperate use of liquor (1057), or that 
the legislation which he sought was morally wrong from the view¬ 
points of that period. 

Public sentiment upon the question of prohibition has undergone 
radical change in the last 10 years, not to say 25 years. The argu¬ 
ment of an attorney 25 years ago is not even persuasive of his views 
now. Generally speaking, it is unfair to make one’s views, within 
legitimate limits, the test of a vote on his confirmation as judge. 
The honest, capable judge only construes the law, and it should be 
assumed that the good lawyer, “wet” or “dry,” when elevated to 
the bench, will not presume to legislate. Only a dishonest judge 
would distort a record or evade a reasonable conclusion, whether it 
suited him or not. 


UNITED SHOE MACHINERY CO. 

The United Shoe Machinery Co. has charged that Mr. Brandeis 
has been guilty of unprofessional conduct in acquiring information 
while connected with that company and using it at a later date in 
the interest of other clients. This charge involves a history of the 
company as well as the evolution of trusts and the laws applicable to 
them. 

The tying-clause system, so called, of the United Shoe Machinery 
Co. was not created by Mr. Brandeis. He severed his relations with 
the company because of his disapproval of this system. Three and 
one-half years elapsed after his resignation from the company before he 



NOMINATION OF LOUIS D. BRANDEIS. 


9 


advised any other client on the subject. In this advice and in all sub¬ 
sequent action which he took he made no use of any confidential 
information; but, on the contrary, the facts seem to have been public 
property well known to the shoe manufacturers (703, 747). 

The United Shoe Machinery Co. was organized early in 1899 and 
acquired the business and assets or a majority of the stock of Good¬ 
year Shoe Machinery Co. (and other Goodyear companies), McKay 
Shoe Machinery Co., Eppler Welt Machine Co. (and another Eppler 
company), Consolidated & McKay Lasting Machine Co., and Davey 
Pegging Machine Co. (703). 

About a year before the organization of the United Co. negotiations 
had been undertaken to brmg these companies together, and Mr. 
Brandeis had opposed this in the behef that on the terms then pro¬ 
posed it was better for the McKay Co. to remain as it was (703). 

The negotiations for the consoUdation, which went through in 1899, 
were conducted principally by Mr. Elmer Howe, Mr. James J. Stor- 
row, and Mr. Winslow (703). Mr. Howe was an experienced lawyer 
and for all practical purposes in charge of the Goodyear Co. Mr. 
Storrow was of the firm of Fish, Richardson & Storrow, one of the 
leading firms of patent lawyers of the country. They were counsel 
for the Ejmler Co., the Consohdated & McKay Co., and the McKay 
Co. Mr. Storrow had or represented a large interest in the McKav 
Co. (703). 

The companies had for a long time put their machines out on leases 
containing restrictive conditions as to their uses, tying clauses, so 
called (174,704,734),similar in form to those afterwards continued by 
the new company. 

A complete investigation indicates that Mr. Brandeis was not asked 
nor did he render an opinion as to the legality under the Sherman 
antitrust law of these clauses of the leases or of the consohdation 
itseK at any time prior to 1906 or 1910 (704, 733, 745, 744). 

Before the consohdation the matter of working agreement between 
the companies was considered, but Mr. Howe thought that this might 
be contrary to the Sherman law and that there should be a new com¬ 
pany which should acquire a full title to the property or stock of the 
old companies (704). 

It should be noted that after the decision in the Kmight case (156 
U. S., 1) in 1895 and at least until the decision of the Northern 
Securities case (193 U. S., 197) in 1904, and of the WaU Paper case 
(212 U. S., 227) in 1909, many lawyers believed that the Sherman 
antitrust law did not prohibit the acquisition by one company within 
a single State of the assets of a competitor even if the manufactures 
of both were going into interstate commerce. 

Mr. Brandeis joined with the eight other directors of the McKay 
Co. in signing the circular to the McKay stockholders recommending 
that they exchange their stock (255, 704). 

Mr. Howe at once became the leading counsel (182, 178, 704, 733) 
for the United Co., and he became also a member of the executive 
committee. Mr. Brandeis became a director. He never became 
general counsel for the company or legal or business advisor on the 
general pohcies of the company (704). He was concerned with the 
general policies of the company only to such extent, if any, as Mr. 
Winslow or others talked with him about them as a director (184). 



10 


NOMINATION OF LOUIS D. BEANDEIS. 


Mr. Brandeis and his firm were employed from time to time in 
specific mattem for which specific charges were made (705). The 
last employment was in a matter begun in 1906, and the only matters 
which lasted after January 7, 1907, were two begun in 1904 or earlier. 

In the winter and spring of 1906 legislation was proposed in Massa¬ 
chusetts to prohibit anyone from imposing in the lease or sale of a 
patented machine a condition that the lessee shall not use the 
machines of another, and from offering unreasonable discounts 
which would prohibit such use (218, 705, 713). This proposed 
legislation was believed to be aimed at the United Co., and to emanate 
from one or more machinery manufacturers (1153) and not from 
shoe manufacturers. 

Mr. Brandeis believed on the information which he then had, or 
which he was given by Mr. Winslow, that the methods of the United 
Co. were beneficial particularly in that their leasing system and uni¬ 
form terms to all worked to the advantage of the small shoe manu¬ 
facturers (217, 705), and that the shoe manufacturers were content 
with the terms of the leases. At this time Mr. Coolidge, one of the 
counsel for the United Co., and who was experienced in legislative 
matters, was ill, and Mr. Winslow requested Mr. Brandeis to act 
(221, 705). He did so, and in April, 1906, he appeared before a com¬ 
mittee and argued (232) against the proposed legislation, adopting 
the facts furnished him by Mr. Winslow (187). He stated that he 
was counsel for a large number of shoe manufacturers (228) and Mr. 
Winslow then knew of this fact (228, 179). 

He, Mr. Winslow, denied it emphatically (181) on February 16, 
1916, until confronted with the statement (228). 

In May, 1906, Mr. Brandeis undertook to secure the assistance of 
some of these shoe manufacturers, Mr. McElwain, Mr. Jones, and Mr. 
Bhss, to support the opposition to the proposed legislation (218, 714). 
He then learned that they objected to the tying dauses in the leases 
(218, 715). Nevertheless, it was arranged that they would join in 
the opposition, but upon the understanding that Mr. Winslow would 
take up the adjustment of the differences, by conference with them, 
without legislation (176, 717). Mr. McElwain asked Mr. Winslow to 
appoint a time for the conferences, and Mr. Winslow expressed the 
desire to postpone them until fall, as he was about starting for Europe, 
and this was satisfactory to Mr. McElwain (218, 722). The bill in 
the legislature failed to pass. 

In September, 1906, Mr. Brandeis wrote to Mr. Flowe, counsel and 
member of the executive committee, calling to his attention the great 
significance of the decision rendered August 22, 1906, by Judge 
Seamans in Indiana Manufacturing Co. v. J. T. Case Thrashing 
Machine Co. (148 Fed., 21), holding that there might be a monopo¬ 
listic combination of patents contrary to the Sherman antitrust kw 
(723). 

Mr. Winslow says that Mr. Brandeis before his resignation and 
acceptance of other eniployment never gave any ''intimation'’ that 
there was "any legal or moral” wrong in the company's organization 
or methods (240). 

On October 5, 1906, Mr. Brandeis, in response to a letter'of criti¬ 
cism from Mr. Erving Winslow, a stranger to the company, wrote 
him reciting what he had ascertained the preceding sprino- and 
defending the company's methods (162). ^ 



NOMINATION OF LOUIS D. BRANDEIS. 


11 


On October 6, 1906, Mr. Erving Winslow replied, saying that even 
on the facts stated he thought that the company was open to criti¬ 
cism (724). 

After Mr. Winslow’s return from Europe about October (181) 
some conferences (228) took place between Mr. Winslow and Mr. 
Jones and Mr. McElwain, in which they disclosed more fully the 
objections to the exclusive use, full capacity, and tying clauses, 
but nothing was accomplished toward the removal of any of these 
clauses (221), and Mr. Winslow did not discuss the matter much 
(227, 725, 727). 

Mr. Brandeis became convinced by those new disclosures that the 
company’s policy was questionable and also that nothing was going 
to be accomplished (221) and that he must either take the matter 
up in the board of directors and fight, probably unsuccessfully, 
with Mr. Winslow and his associates or retire from the company 
(221). On December 6, 1906, Mr. Brandeis resigned from the board 
of directors without assigning this difference of opinion as a reason 
in his letter of resignation (163), but Mr. Winslow understood per¬ 
fectly that Mr. Brandeis’s desire not to be a party to the existing 
policy of the company was the reason. Mr. Winslow telephoned him 
on December 11, before his resignation had been accepted, and said, 
am very sorry to have you go, and don’t want you to feel that there 
need be any embarrassment on your part; but of course if you think, 
in view of what may be called up this winter, you would rather not 
be there, we do not want to insist upon it” (726). Mr. Brandeis re¬ 
plied that it might be embarrassing both to Mr. Winslow and to him, 
and that if they did not agree as to the course to be pursued he 
might, if he were a director, feel called upon to bring the matter up 
before the board (726). It had been announced already (179) that 
there would be an effort in the coming winter to get legislation 
against the practices of the company (726). 

Efforts to get the company to make some changes continued and 
Mr. Winslow had long conferences with Mr. Brandeis on January 2 
and January 7, 1907 (726), at which Mr. Brandeis urged his objec¬ 
tions at length to the tying and other clauses, but Mr. Winslow was 
unwilling to make any change (177, 178, 179, 180, 730). Mr. 
Brandeis told him that by making the changes, they could avoid 
trouble (182). Latqr (735), in a letter to Mr. Winslow referring to 
this interview, Mr. Brandeis speaks of the ‘‘radical differences 
between your opinion and mine when we last met” (237). Mr. 
Winslow replied the next day, saying, ‘‘We value your opinion in 
these matters very highly, even if we do not decide that we can follow 
same at this time” (735). Mr. Brandeis had become convinced by 
this time that while the pobey and methods of the company had on 
the whole operated beneficially up to that time, they must, if pursued, 
eventually prove injurious, both to the community and the com¬ 
pany’s interest; and' he urged most strenuously upon Mr. Winslow 
and the officials who participated in the conference with him that 
these methods be changed, that the policy of monopoly be abandoned, 
and particularly that the tying clauses be eliminated from the leases 

(219). . . 1 r 

Mr. Winslow testified on direct examination that he knew of no 
reason for Mr. Brandeis’s resignation except that expressed in the 
letter (175), and that at the later conference of January 7, 1907, “he 


12 


NOMINATION OF LOUIS D. BEANDEIS. 


expressed a desire that the United Co. make changes in its leases, but 
he made no concrete suggestion, though asked to do so,’’ and left the 
inference clear that his severance of relations with the company had 
nothing to do with this (163). In his widely pubhshed attack on 
Mr. Brandeis in the spring of 1912, he said that during the time that 
Mr. Brandeis was director and counsel ^Hhere entered his mind no 
doubt whatever of the propriety and legaUty” of the company’s 
pohcies and methods. In his published letter of January 19, 1912, 
attacking Mr. Brandeis, to Senator Clapp as chairman of the Commit¬ 
tee on Interstate Commerce, he says that up to the day that Mr. 
Brandeis accepted employment by chents having hostile interests, 
he never gave any intimation” of any legal or moral wrong in the 
company’s organization or methods, and nowhere in the letter does 
he refer to the fact that Mr. Brandeis had suggested any changes of 
poUcy. In his published letter of February 29, 1912, to Senator 
Clapp, he refers to the fact that Mr Brandeis’s letter of resignation, 
shows ^^no uneasiness in Mr. Brandeis’s mind as to the soundness of 
the company’s pohcy or the propriety of its methods.” 

At the time of testifying on direct examination and at the time of 
these pubhcations, Mr. Winslow had in his possession the letters of 
September 12 and 13, 1907, and Mr. Brandeis’s narrative of the facts 
(221, 227). His answers on cross-examination showed his full 
consciousness of the stand which Mr. Brandeis had taken (177, 178, 
179, 180, 182, 237). 

After January 7, 1907, Mr. Brandeis never acted as counsel for the 
company and no new matters were taken to his firm. One of the 
members of the firm continued to act in one litigation which involved 
no question of tying clauses or monopoly (731). This htigation was 
begun to secure the return of certain machines claimed to be the 
property of the company. This was tried in December, 1906, was 
argued on exceptions in November, 1907, and decided in January, 
1908 (734). Other suits followed as a result of this decision, and the 
company retained other counsel for them. Incidental services were 
rencfered in this connection until 1909. 

In the legislative proceedings in 1907, and in aU new matters, the 
company employed other counsel (183, 734). 

Mr. Brandeis’s termination of relations with the United Shoe Ma¬ 
chinery Co. was due to his unwillingness to be identified longer with 
their policies, which he then expressly disapproved, because of the 
objections pointed out by the shoe manufacturers and others in the 
fall of 1906 (219) wMch came to him after he had expressed to Mr. 
Howe the possible significance of the decision of Judge Seamans in 
the legal situation (723). His severance of relations meant the loss 
of a client (727) and was without expectation of advantage to him¬ 
self, financial or otherwise. 

During the following three and one-half years he had nothing to do 
with shoe machinery matters (219), and in 1907 declined to act for 
Mr. Plant (735), a potential rival of the United Co. (222). 

On April 30, 1907, the supreme judicial court gave to the legisla¬ 
ture, in response to its request, an opinion that an act of the kind 
proposed aimed against certain of the clauses in use by the United 
Co. in its leases would be constitutional (220) (193 Mass., 605). Such 
an act was passed on June 1, 1907 (219-222). The company at¬ 
tempted to avoid the prohibition by adding to its leases a provision, in 
substance, that any provisions in the lease which were unlawful 


NOMINATION OF LOUIS D. BKANDEIS. 


13 


should not be deemed to be binding, and also a provision reserving to 
the company the right to cancel the lease on 30 days’ notice (222). 
A use of new machines in contravention of the language of the tying 
clauses involved thereafter to the shoe manufacturers the double 
danger of a decision that the clauses were valid and of a 30-day termi¬ 
nation at the will of the company (222, 737). 

In Jime, 1910, Thomas G. Plant, the owner of two-thirds of the 
stock and the executive head of the Thomas G. Plant Co., a large shoe 
manufacturer, claimed to have perfected a complete line of shoe 
machinery which was installed in the shoe factory of the company. 
Other shoe manufacturers had this examined in their interest and 
received a favorable report. Mr. Charles H. Jones, of the Common¬ 
wealth Shoe & Leather Co., who had been a chent of Mr. Brandeis 
and his firm for over 15 years, asked Brandeis, Dmibar & Nutter for 
an opinion as to whether he could legally take the new machines or 
whether the leases were enforcible to prevent them (223, 736) . 

They reached the conclusion that under the conditions which then 
existed and in the Hght of the decisions rendered, notably the Wall 
Paper Trust decision (212 U. S., 227), rendered February 1, 1909 
(219), that the company was then a combination in,restraint of trade 
and that the leases were unlawful as essential parts in perpetuating 
its monopoly, and were in themselves restraints of trade, and that 
the fact that the machines were patented did not relieve the leases of 
this objection, because designed to create a monopoly in excess of the 
patent. They so advised k&. Jones (163, 736). Other manufacturers 
received the same advice from able counsel (223). 

Wien this opinion was given the leases were public property, the 
opportunities, theoretic and practical, of getting shoe machinery from 
the United Co., or from any other source, and the practical possi- 
bihties of installing and using an entire new line of machinery at one 
time were known to the shoe manufacturers. The essential facts 
for forming the opinion rendered were not obtained from the United 
Co., confidentially or otherwise (744). 

Mr. Winslow, on direct examination and in his published letters, 
used language and made omissions calculated to create a contrary 
impression (160, 164); but he was unable to think of a single fact in 
support of the unfounded insinuation (185, 249), and when the 
question showed that he perceived the truth, Mr. Winslow receded 
to the point that his real criticism of Mr. Brandeis was untruthfulnessj 
not use of private information. 

He said, “I do not criticize Mr. Brandeis’s acting for anyone if he 
had at all times scrupulously, or I might say, fairly, confined him¬ 
self to statements that were correct or true” (202). 

When tins opinion was rendered to Mr. Jones, Brandeis, Dunbar & 
Nutter were as free in right and propriety to render it as any 
lawyers at the bar, and it was rendered to one who had been their 
client from a time before the United Co. existed or was thought of. 
TTiey received compensation for this opinion (1154). 

It was given to Mr. Jones for his guidance and not as an advertis¬ 
ing weapon. Mr. Jones has testified that he showed it to Mr. Plant 
and Mr. Plant published it. Neither Mr. Brandeis nor his firm had 
any part in any scheme of Mr. Plant’s, if any there was, to force the 
United Co. to buy him out (253). 


14 NOMINATION OF LOUIS D. BRANDEIS. 

At about this time—summer of 1910—Mr. Brandeis, in response to 
a question in casual conversation from Mr. Barbour, a member of 
the executive committee of the United Co., told hini that in his 
opinion it would be unlawful suppression of competition for them 
to buy out Plant or his patents (219, 223) 

The company bought out Plant on September 23, 1910, and at a 
time when a group of large shoe manufacturers from St. Louis were 
considering the purchase. 

Two of these manufacturers, Mr. Jackson Johnson and Mr. Milton 
S. Florsheim, then conferred with Mr. Winslow. He says that they 
proposed that they be permitted to acquire stock in the United Co. 
on unduly favorable terms, and be given better terms on their shoe 
machinery than was accorded to other manufacturers (196, 191). 
They deny this (192, 193). 

During the following fall and winter (200) these and other manu¬ 
facturers foimed the Shoe Manufacturers’ Alliance, designed to secure 
an opportunity to acquire shoe machinery, whether by purchase or 
lease, on terms that left the shoe manufacturers free to choose one 
or more machines at a unit price (163); that is, without tying or 
exclusive-use clauses. Their object was to get the freedom which 
Mr. Brandeis had advised the United Co. four years before that they 
ought to give. 

Apparently the information which started the proceedings of the 
United States against the United Co. came from sources disconnected 
with this alliance and before Mr. Brandeis acted for them (739). 

On January 4, 1911, a resident of Fall River, Mass., wrote the 
Attorney General about the matter. In consequence, on January 11, 
1911, the Department of Justice asked the United States attorney 
for Massachusetts for information on the subject, and by March the 
representatives of the Government were making investigations at 
the offices of the company (201). 

On May 3, 1911, the Western Shoe Manufacturers related to the 
Senate Committee on Finance the alleged monopoUstic position 
which the United Co. had attained (Senate Hearings on the Tariff, 
1-5, 1911, p. 3, Cong. Lib. H. F. 1756-a3-1911). 

On May 4, 1911, in debate on the farmers’ free list, in the House, 
Mr. Thayer, of Massachusetts, quoted the act passed in Massachu¬ 
setts in 1907 and severely attacked the United Co. as a trust (Cong. 
Kec., 62d Cong., 1st sess., vol. 47, pt. 1/2, 953-954). This was 
followed by his introducing a bill on June 8 (pt. 2, p. 1808). 

On May 9, 1911, Senator Gore introduced a resolution for an 
investigation into the use of patents in the creation of monopolies 
(pt. 2, p. 1072) (740). 

The subject matter of the proposed legislation was the betterment 
of conditions as they existed in 1911, and not an attack upon past 
acte-. The same is true of the equity suit brought by the Government 
and the indictment was limited to offenses committed since 1908. 

On May 22, 1911, for the first time, representatives of the Shoe 
Manufacturers Alliance consulted Mr. Brandeis and he said that he 
was willing to act if what they were after was not special terms but 
freedom in the acquisition of shoe machinery for themselves and tiieii 
competitors. They were in accord with this purpose and showed no 
hostilit} to the United Co., but the reverse (224, 737). 


NOMINATION OF LOUIS D. BRANDEIS. 


15 


One of the first steps taken by Mr. Brandeis was to endeavor to 
ascertain what sources for shoe ma, ^hinery were in existence (738). 

In response to the request of the shoe manufacturers, Mr. Winslow 
apparently for the first time submitted to them a scheme for sepa¬ 
rating the different departments so that they would be independent 
of each other (201-260). 

About this time, The Standard ()il decision (221 U. S., 1), having 
been rendered in May, Mr. Matz, tme of the directors of the United 
Co., requested Mr. Winslow to bring the relations of the Government 
before the directors and to have Mr. Brandeis and Mr. James A. Gar¬ 
field, his friend and lately Secretary of the Interior, talk to the di¬ 
rectors. It was known that Mr. Brandeis was acting for the Shoe 
Manufacturers Alliance (200). On June 17, 1911,Mr.Matz had sought 
advice from Mr. Brandeis and he had advised him to resign, as he, 
Brandeis, had done in 1906 (227, 741). Mr. Garfield advised Mr. 
Matz to bring the matter before the directors and this was done on 
July 12, 1911 (221). At this time Mr. Brandeis stated fully to the 
directors his own course in severing his connection with the com¬ 
pany at the end of 1906, his reasons therefor and his belief as to the 
effect of the companv’s course as a suppression of competition 
(221, 227). 

When Mr. Winslow attacked Mr. Brandeis in his published letter 
of January 19, 1912 (217), to Senator Clapp, Mr. Matz ^ve Mr. 
Brandeis permission to wTite to Senator Clapp what Mr. Brandeis 
had said at this meeting, concerning his owm course, and Mr. Brandeis 
did so (217, 221), omitting any reference to the fact that he had 
attended at Mr. Matz's request. Mr. Winslow, well knowing this 
fact (201), described the meeting in his published letter of February 
29, 1912, to Senator Clapp as a “part of the same campaign,’^ i. e., 
that for the Western Alliance of Shoe Manufacturers. 

In the following December (14, 15, and 16), 1911, ^Ir. Brandeis 
in the course of a 3-day discussion before the Senate Committee on 
Interstate Commerce as to trusts, made reference to the United 
Shoe Machinery Co. as an illustration of the ultimate effect of a 
monopoly however innocently created and prudently managed (741). 

In those remarks Mr. Brandeis made no point of the advantage of 
his former connection with the company. 

Mr. Winslow in his testimony says that Mr. Brandeis's wmrds carried 
added weight because of liis known former connection (165, 202). 
In his letter to Senator Clapp January 19, 1912, Mr. Winslow criti¬ 
cized Mr. Brandeis for failing to disclose this former connection and 
promptly himself gave the added weight, if any. 

On January 26, 1912, before the Judiciary Committee of the House 
in the hearings on the Thayer biU, the Lenroot bill, and the Peters 
bill (743, p. 13), and on February 16, 1914, before the Judiciary Com- 
mitte(‘ of the blouse, he spoke on the same subject. 

The statements made in these hearings (1025-1050), which Mr. 
Winslow says are false (166-168), are statements of inferences fuUy 
warranted by the information furnished by shoe manufacturers, and 
others familiar with the real situation, and by the fact that these 
manufacturers do not know where they can get sufficient equipment 
of the necessary machines, except from the United Co. (746). 

Some of the leases of what are regarded as essential machines 
provide in substance that on failure to observe the conditions of the 

Vi 


16 NOMINATION OF LOUIS D. BRANDEIS. ^ 

exclusive use, additional machinery, or tying clauses of that or any 
other similar lease from the company, the company may terminate 
not onty the particular lease, but all other leases from the company. 

Mr. Brandeis’s statements concerning the effect of the United Co. 
upon Mr. Plant’s credit were clearly e:jmressed to be his own inferences 
(167). The hostility of the United Co. with its great power would 
tend to reduce and perhaps to destroy Plant’s credit even if the com¬ 
pany did absolutely nothing. Mr. Plant, who did not testify in the 
suit of the United States against the United Co., had said, in August, 
1910, that the company had cut off his credit in Boston and that he 
must therefore try New York (746). He says there was a definite 
basis for this befief. In New York negotiations were taken up with 
Mr. Evans and Mr. Wallace, of New York, and in the course of them 
Mr. Wiggin, of Chase Bank, a director of the United Co., spoke to Mr. 
Evans about the matter. It appears that Mr. Wiggin brought one 
of the attorneys for the United Co. into communication with Mr. 
Evans and Mr. Wallace (747). He says that he did not discourage the 
financing, but Mr. Plant did not know that and did not learn that 
they were in communication. 

It is not possible to try out in detail the accuracy of Mr. Brandeis’s 
statements; but enough has been said to show that there is no war¬ 
rant for any of Mr. Winslow’s assertions that they were not scrupu¬ 
lously truthful. 

These services have been without compensation to Mr. Brandeis 
(742). 

The most significant fact in this case is that Mr. Brandeis volunta¬ 
rily and with no prospect of profit to himself gave up his connection 
with a profitable chent as soon as and because he became convinced 
that the pohcy which it was pursuing and would not change was 
wrong. Four years later, and again without desire for profit to him¬ 
self, he gave his assistance to the effort to stop what he beheved 
would be the future and increasing effect upon the community of that 
wrong pohcy. It may well be asked. How long does an employment 
mortgage the lawyer’s conscience ? After aU, what private informa¬ 
tion” was divulged? I can not see that there was any. 

GILLETTE CASE. 

It is urged that the action of Mr. Brandeis, taken for Mr. Gillette 
in the organization of the Gillette Securities Co., was unprofessional 
because of its effect upon Mr. Joyce. (Richardson, 355 to 371; 
Williams, 372 to 384.) This contention seems to me to be far-fetched, 
if there can he found, indeed, the shghtest reason to ume it. 

Mr. Brandeis and his firm acted as counsel for Mr. Gillette, begin¬ 
ning about 1901 (887). In 1906 suits were brought against Gillette, 
Joyce, Curran, Holloway, and Heilborn (888), claiming that they 
had conspired to obtain, and in consequence had obtained, stock of 
several stocldiolders of the Gillette Safety Razor Co. by false repre¬ 
sentations, and that the defendants had also, as directors of the 
company, paid Gillette, Joyce, and Holloway excessive salaries. 
The defendants made a joint defense, and Brandeis, Dunbar & 
Nutter acted for them in so doing. 

During the pendency of the suits Mr. Gillette and Mr. Holloway 
became convinced that Mr. Joyce was cooperating with another 



NOMINATION OF LOUIS D. BKANDEIS. 


17 


stockholder in measures to oust Mr. Holloway and possibly Mr. 
Gillette from their official positions in the company (889). Mr. 
Joyce probably had other counsel (889). Mr. Gillette and Mr. Hol¬ 
loway obtained the cooperation of other stockholders to ^uard against 
the ousting of Holloway and Gillette. In order to obtain a majority 
of the stock it was necessary to secure the stock or the cooperation 
of Mr. Stewart and Mr. Flaccus, plaintiffs in the pending litigation 
(889) and believed to be the chents of Mr. Richardson with whom 
Mr. Williams was supposed to be cooperating because he had chents 
having a similar interest (888). 

Mr. Brandeis acted for Mr. Gillette in some of the conferences with 
Mr. Richardson, whiclfe resulted in the purchase by Mr. Gillette of 
Mr. Flaccus’s stock and an agreement between ^Ir. Gillette and Mr. 
Stewart whereby Mr. Stewart exchanged his stock for stock in a 
holding company which was formed to acquire a majority of the 
stock of the razor company (889). 

There was nothing in the proceedings that bore any relation to the 
pending suits, except that the sale of Mr. Ilaccus’s stock involv^ed 
his giving up the pending suit, and this was by so much to the advan¬ 
tage of Mr. Joyce (891). 

The facts of this matter became known to Mr. Joyce about January, 
1907. Brandeis, Dunbar & Nutter continued the defense of the 
pending cases for all of the defendants and obtained a decision whoUy 
favorable to all the defendants except Mr. Heilborn. Before this 
decision had become final, other suits had been brought against Mr. 
Heilborn and Mr. Joyce, not including Mr. Gillette or Mr. Holloway. 
In these Mr. Joyce’s counsel, Hurlbut, Jones & Cabot, appeared for 
Mr. Joyce. They also appeared in the Stewart case, Mr. Jones, of 
that firm, having stated that Mr. Joyce thought that his interests 
might differ from those of Mr. Holloway, so that he wanted to be 
separately represented (892). 

In connection with negotiations with Mr. Stewart to have him join 
in exchanging his stock for stock in the holding company, Mr. Gil¬ 
lette agreed to cause him to be elected an officer of the company. 
Mr. Gillette subsequenlty did aU that he could to carry out this 
agreement, through action by the board of directors in which he 
and those in sympathy with him did not have a majority of the 
votes. Before the next annual meeting, Mr. Gillette bought Mr. 
Stewart’s stock and so terminated his obligation by agreement with 
Mr. Stewart (986). 

At a later date, Mr. Joyce pui-chased Mr. Holloway’s stock in the 
holding company and then brought a suit to dissolve the holding 
company or to convert his holding company stock into stock in the 
razor company, which would have given him a majority of the stock 
in the razor company (893). Subsequently, in December, 1911, Mr. 
Joyce bought Mr. Gillette’s stock, or a substantial part of it, and 
thereby secured control and the suit was dismissed (893). 

There was nothing to criticize in Mr. Brandeis’s connection with the 
matter at any point (883). 

ILLINOIS CENTRAL RAILROAD PROXIES. 

It is charged that Mr. Brandeis misrepresented his relation to the 
procuring of the proxies for the meeting of the stockholders of the 
Illinois Central Railroad Co. in the fall of 1907. (Peabody, 754.) 

Ex. Kept. 2. pt. 1, ()4-l--2 


18 


NOMINATION OF LOUIS D. BEANDEIS. 


On May 19,1908, Mr. Joseph B. Warner, the chairman of the com¬ 
mission on commerce and industry, in committee of the Massachu¬ 
setts Legislature, in supporting the position taken by the majority 
of that commission in favor of the New York, New Haven & Hartford 
Co. against the opposition of the minority (638, 639), referred to Mr. 
Brandois, who opposed the position taken by the majority of the 
commission. In the course of his remarks Mr. Warner referred to 
Mr. Brandcis’s activities in connection with the obtaining of proxies 
‘for the meeting of the stockholders of the Illinois Central Railroad 
Co. On the same day. May 19, 1908 (697), Mr. Brandeis wrote to 
the chairman of the committee a precise statement of the exact rela¬ 
tion of himself and of his firm to these proxies (352). 

In the fall of 1907 Mr. Brandeis's partner, Mr. Nutter, was requested 
by Mr. Catchings, of the firm of SuUivan & Cromwell, New York, to 
supervise the solicitation in and about Boston of proxies in the 
interest of the existing board of directors of the Ilhnois Central 
Railroad Co., of which Mr. Harrahan was the president and Mr. 
E. H. Harriman an important member. The opponents in this con¬ 
test were a faction headed by Mr. Fish. Mr. Nutter appealed to 
Mr. Brandeis before taking the matter up to assure himself that there 
was nothing in it that would conflict in any way with the work Mr. 
Brandeis was doing in connection with the attempted so-caUed merger 
of the Boston & Maine Railroad with the New York, Now Haven & 
Hartford Railroad. Mr. Brandois made special inquiries to assure 
himself that there was no conflict and that the side which was advo¬ 
cated by Mr. Catchings, in the internal difficulties of the company, 
was one which appeared to be for the best interests of the stock¬ 
holders (340). TWre was nothing to indicate, and there is notliing 
now to indicate, that either side in this controversy had any relation 
to the railroad situation in New England. Mr. Brandeis “was ex¬ 
pected to do notliing, and he did do nothing,^’ in this matter (342), 
and the evidence is consistent with the statement in the letter of 
Mr. Brandeis to the chairman of the House Committee on Railroads 
(352). It would seem that anyone looking at the evidence (353-354) 
and the letter signed by Alfred Jaretzki, and noting the failure to 
produce Mr. Jaretzki, could not fail to dismiss this charge as wholly 
unsupported. 

LENNOX CASE. 

The claim asserted in this matter is that Mr. Brandeis was guilty 
of unprofessional conduct in accepting employment as counsel for 
P. Lennox & Co, or James Lennox, and then acting against them. 

P. Lennox & Co., a partnership consisting of Patrick Lennox and 
his son, James T. Lennox, and doing a large tanning business in 
Lynn, Salem, and Peabody, Mass., found themselves seriously 
crippled financially at the beginning of September, 1907. At this 
time the active partner was James T. Lennox. His father had been 
inactive in the business for about 10 years. This financial embarrass¬ 
ment led James T. Lennox to send for Mr. Stein of the Abe Stein Co., 
of New York (1104), who was a creditor (Whipple 286). Mr. Stein 
and his counsel, Mr. Stroock, reached Boston on the night of Sep¬ 
tember 3, 1907; and on the morning of September 4, they had a con¬ 
ference with James T. Lennox; Mr. Spaulding, of the Columbia Kid 


NOMINATION OF LOUIS D. BKANDEIS. 


19 


Co., conducting a selling agency (778) for P. Lennox & Co., and Mr. 
Coljiirn, treasurer of the Tracy Bros. Leather Co., in which James 
T. Lennox owned an interest (770;-Stroock, 311). On learning of 
the financial situation, Mr. Stroock suggested that as he was counsel 
for ^^Ir. Stein and not a Massachusetts lawyer, Mr. Lennox ought to 
have counsel (1073,1114). He suggested Mr. Brandeis, and he being 
satisfactory to Mr. Lennox, Mr. Stroock called on Mr. Brandeis on the 
morning of September 4 (1074) to arrange an interview. 

The subject under consideration at this time was the possibility 
that Mr. Stein might make Mr. Lennox a further loan, if the prospects 
were such that this was safe and likely to bring success. (Stroock, 
315; Whipple, 286; Brandeis letter, 289, 1099.) Mr. Stein was 
ready to make the loan (1105). 

^Ir. Stroock arranged (1076) with Mr. Brandeis for an interview 
and soon after 10 in the morning of September 4 (Stroock, 310, 1014), 
Mr. Stein, Mr. Stroock, Mr. Lennox, Mr. Coburn, and Mr. Spaulding 
called together on Mr. Brandeis. He had never met Mr. Stroock or 
James T. Lennox (Stroock, 312), and never has met Patrick Lennox. 

Shortly after the interview began (Stroock, 311), or in the after¬ 
noon, a stenographer was called in and took notes of the interview 
(1014; stenographer’s report, 775). The first thing dictated was a 
form of letter which apparently Mr. Stroock desired to send to cer¬ 
tain concerns holding leather received from P. Lennox & Co., to 
which Mr. Stein asserted title under the terms of certain trust receipts 
(Stroock, 313), under which he had originally supplied the skins to 
P. Lennox & C^o. (788, 1014). This was dictated in the presence of 
all (1077, 1112). 

The interview lasted into the afternoon, or, as Mr. Stroock put it, 
consisted of two interviews on that day, at both of which all the same 
persons were present (Stroock, 310). Mr. Stroock’s recollection is 
that it was at the afternoon interview that the stenographer was 
present first (311) and that the morning conference lasted but a few 
moments (311). Mr. Stroock says that it was at the afternoon inter¬ 
view that Mr. Brandeis said, for the first time, that he could take the 
matter up (312), notwithstanding his firm’s sometime relation to a 
creditor, Weil, Farrell & Co. The stenographer’s report indicates 
convincingly that this remark did not occur until the following morn¬ 
ing (788). She has no reference to such a statement on the afternoon 
of September 4 (775-787), and has one on the following morning 
inconsistent with the question’s having been settled the day before 
(78S). Other remarks which Mr. Stroock attributes to the afternoon 
of September 4 (312) do not appear in the stenographer’s notes of that 
interview (775-7S6), but do in those for September 5 (790), notably 
Mr. Stroock’s statement that— 

1 said that I saw do reason why Mr. Brandeis could not go over the matter and 
work out the whole situation for the benefit of all the parties, because it seemed to me 
that this was a situation where the interests of the debtor and the interests of the creditors 
were alike (312). [Italics not in original.] 

Mr. Lennox says that the stenographer was present when Mr. 
Brandeis said he would take the case (1119) and that the first* day, 
September 4, Mr. Brandeis said that he would not give his decision 
about undertaking his case until the following day (1131), and that 
on the following day he said that he would act as his counsel. This 
shows clearly that Mr. Lennox is testifying to the same things which 


20 


NOMINATION OF LOUIS D. BRANDEIS. 


appear in detail and with precision in the stenographer's notes of 
September 5, hereafter referred to. 

The conversation on September 4 was conducted openly in the 
presence of all and without any private communications between 
Mr. Lennox and Mr. Brandeis. Mr. Lennox was at no time alone with 
Mr. Brandeis. Mr. Stein was a creditor, Mr. Spaulding a debtor, 
Mr. Coburn a business associate and adviser (785). The conversa¬ 
tion was long. The names of the principal creditors and the amounts 
of their claims were stated, and also the character and value of the 
assets (775-787). Mr. Lennox said that the partnership consisted 
of Patrick Lennox and himself (775), and it was not intimated even 
remotely that there was any question about it (Stroock, 313, 314). 
Mr. Lennox now says that the partnership consisted of his father and 
himself (1128). Lennoxes statement of his assets and his lia- 

bihties showed clearly the insolvency of the partnership (775-786). 

Mr. Brandeis then said: 

Well, now, I think it perfectly clear that you ought to discuss this matter with your 
father. He has. unfortunately not had any information up to now, but he ought to 
have it now, and he ought to know fully the situation, and he ought to consider whom 
he would like to have represent him (774 786). 

Mr. Lennox said that his father would leave it aU to him, and that 
as notes were coming due every day it was imperative that he do 
something (786). 

Mr. Brandeis said that the situation was much more serious than he 
had supposed from what Mr. Stroock had said in the morning, and 
that he had very little doubt that it would be necessary to make an 
assignment to trustees for the benefit of creditors (786). Mr. 
Lennox was a man of 30 years’ experience in business and accus¬ 
tomed to business in a large way and understood what an assignment 
for the benefit of creditors was (1119, 1123). 

The interview closed with Mr. Brandeis repeating that Mr. Lennox 
should talk the matter over with his father, who might have some 
preference in the matter of counsel, and asking Mr. Lennox to make 
up a more detailed statement of assets and liabilities, and suggesting 
another conference early the next morning (787). 

On the following morning, September 5, Mr. Lennox and Mr. 
Stroock called on Mr. Brandeis. Mr. Stroock says that the others were 
present also (311). The stenographer’s notes do not show this (791). 
Mr. Lennox began by reporting that he had talked with his father, 
and that he had no suggestion to offer (791, 1122). Then, after a 
short talk about assets and liabilities, Mr. Brandeis said: 

Well, now, Mr. Stroock, I should think that the question that we ought to decide 
now is whether I should act for Mr. Lennox in this matter or not. I of course under¬ 
stand you came to me after conference with Mr. Lennox to ask me whether I would act 
for Mr. Lennox. 

To this Mr. Stroock replied: 

May I ask you this question, Mr. Brandeis: From all you know, do you believe that 
you could remain in the case in view of your firm’s position with Weil, Farrell & Co.? 

To.this ^Ir, Brandeis replied: 

Yes, I think I could. The position that I should take if I remained in the case 
for Mr. Lennox would be to give to everybody, to the best of my ability a sauare 
deal (792). ^ 


NOMINATION OF LOUIS D. BRANDEIS. 


21 


It seems clear that this conversation is the one which Mr. Stroock, 
testifying after eight years, has placed as occurring on the preceding 
day (312). 

It is apparent that it was still being considered whether Mr. Bran- 
deis should act in the matter at all. He followed this by saying that 
the only coume for Mr. Lennox was absolute squareness and frank¬ 
ness to creditors, each to have whatever his legal rights might be. 
He said: 

I should, if I acted for Mr. Lennox, see that he got his legal rights—no more and no 
less (793.) 

Next he repeated that he thought an assignment for the benefit 
of creditors would be advisable. Mr. Stroock suggested the possi¬ 
bility of bankruptcy if the assignment was made. Brandeis said 
it was a possibihty, but he thought that the creditors would want 
to avoid bankruptcy (793). Then Mr. Stroock suggested Mr. Bran- 
deisms acting for Stein rather than as “attorney for trustee of the Len¬ 
nox family^ (793). Mr. Brandeis favored the latter course and said: 

I should feel if I were acting for Mr. Lennox as trustee that it was the duty of the 
trustee to see that everybody got his legal rights as nearly as we could make it. 

and in cases of doubt— 

I should feel that we ought to have a committee of the creditors with whom the trustee 
could confer; and if there are any questions of doubt in adjustment, that we get the 
advice of that committee and through them make the proper settlement. (793.) 

This is followed by repetitions of the same ideas in other words, 
with an explanation that an assignment womd transfer all the prop¬ 
erty to the trustee for the purpose of liquidation and distribution to 
creditors (794); that the trustee could employ Mr. Lennox and that 
the trustee would have to determine with the creditors whether the 
business should be continued. This part of the discussion closed with 
Mr. Lennox’s inquiry: 

You are speaking now of Mr. Brandeis acting as my counsel? 

To this Mr. Brandeis replied: 

Not altogether as your counsel, but as a trustee of your property. (795.) 

These are the conversations that determined the only understand¬ 
ing upon which Mr. Brandeis took this matter up; that.is, as a trustee 
of this property for the benefit of the creditors and the debtors (1121). 
I^Ir. Lennox, Mr. Stroock, and Mr. Brandeis then agreed and now agree 
that the interests of the creditors and of the debtors were common 
and to realize as much as possible on their property, and not in con¬ 
flict. (Stroock, 312; Whipple, 289; Lennox, 791, 1126.) Mr. Lennox 
asserted that his father also wanted to pay his creditors in full (791). 
They desired Mr. Brandeis’s assistance to bring about this result. 

All agreed, and now agree, that an assignment to a trustee for the 
benefit of creditors was the wisest course. (Stroock, 314, 795, 1088.) 
Indeed, there was no other course open except immediate bank¬ 
ruptcy proceedings. 

Instead of Mr. Brandeis acting personally as trustee, it was agreed 
that Mr. Nutter should do so. (Stroock, 313.) 

Up to the time that the assignment was made there had been no 
private communications between Mr. Brandeis and Mr. Lennox. 
They had never talked together alone. No papers had been shown 
or delivered to Mr. Brandeis. The attorney of the creditors was 


22 


NOMINATION OF LOUIS D. BEANDEIS. 


there all the time. There was no reason to suppose that the facts 
concerning the condition of the business could he longer concealed, 
or that there was any desire or intention to conceal them. 

Whatever may have been the occasion for coming to Mr. Brandeis 
in the first place, the only employment which he accepted was that o1 
trustee for the benefit of creditors or as attorney for such trustee (827, 
828). He was free to act. He was under no obligation to become 
or remain counsel for Mr. Lennox in opposition to this trust. He 
was not employed by any other client in this matter. He gave the 
only sound advice that could be given at that time, and everything 
which he did thereafter was consistent with, and required for, the 
performance of that trust (834). 

The assignment was in the printed form (796) in use in the office. 
It described the assignors as Patrick Lennox and James T. Lennox, 
copartners as P. Lennox & Co., and the assignee as George R. Nutter. 
James T. Lennox signed it and gave Mr. Nutter a letter to his father, 
Patrick Lennox (314, 801). Mr. Nutter called on Patrick Lennox 
and told him that this was an assignment for the benefit of creditors, 
and told him what an assignment was (802). Patrick Lennox was 
in full (1122) possession of his faculties and in physical condition to 
be at his place of business the following day. 

Septemuer 5, 1907, Mr. Nutter arranged with an audit company 
to begin work the next day to find out the exact financial condition. 

On that day, pursuant to prior arrangement with Mr. Stroock 
and Mr. Lennox (795), Mr. Brandeis talked with numerous creditors, 
and told Mr. Lennox, Mr. Spaulding, Mi*. Nutter, Mr. Stein, and 
Mr. Stroock, that he had told those creditors that the assignment 
had been executed but that they would hke to avoid recording it 
(803-804). , _ ^ 

Then followed lengthy interviews for the information of the trustee 
as to the condition of the accounts, assets, and liabilities (804). 

On September 6, 1907, Mr. Nutter went to the ofiice of P. Lennox & 
Co. Before entering he met Patrick Lennox and he asked him how 
things were getting along, and Mr. Nutter said all right (804). This 
was the second and last time (805) that Mr. Nutter ever saw Patrick 
Lennox. Mr. Nutter learned that the books had not been balanced 
since 1902 and did not cover many outside business transactions 
and were meager (293, 804). 

The employees of the audit company called t.o Mr. Nutter’s atten¬ 
tion two checks for S5,000 each, apparently drawn on September 3 
to pay notes, and that no notes to be paid on that day could be 
found (804). 

On September 7, 1907, Mr. Brandeis, Mr. Nutter, and Afr. Lennox 
had an interview in which Air. Nutter asked Air. LennoxVhat had 
become of these two checks for $5,000 each, drawn on September 3 (804). 
Air. Lennox said finally that he had the money in the safe of another 
man in Lynn (804). He then agreed to bring the money to the 
assignee, and did so on September 9. Nothing by way oi lack of 
frankness to Air. Brandeis and Air. Nutter on Air. Lennox’s part had 
been noticed by them before this (805). 

On September 9, it became apparent that an extension by the 
creditors was out of the question and the newspapers published a 
statement that the firm was financially embarrassed (314, 805, 1102). 
On that day Air. Nutter told Air. Lennox that hope of an extension 


NOMINATION OP LOUIS D. BRANDEIS. 


23 


was out of the question and that it was necessary to record the 
assignment. Mr. Lennox assented to this (805) before it was recorded 
(1169). 

On September 10, 1907, Mr. Nutter recorded the assignment. 

On September 10, 1907, Mr. J. P. Leahy called upon Mr. Nutter 
and said that he acted for Mr. Patrick Lennox and from that time he 
continued to appear in that capacity in this matter, for two or more 
years (805, 806). This showed a clear understanding that Mr. 
Brandies was not counsel for Patrick Lennox, and there was nothing 
to distinguish between Patrick and James T. in that respect. 

Patrick Lennox took a position of opposition immediately (291), 
and it was this opposition more than anything done by James T. 
Lennox that rendered banla*uptcy proceedings inevitable (1130, 
1133, 1134). 

On September 11, 1907, Mr. Stroock and Mr. Stein called on Mr. 
Brandeis and asked him to act particularly for Mr. Stein, and Mr. 
Brandeis told them that he could act for Mr. Stein only as for aU 
the creditors equally and that he had no objection to their getting 
independent counsel to act for them specially (819, 820). They 
decided not to do so for the time being (823). This interview as a 
whole shows that there was a clear understanding that Mr. Brandeis 
was acting for the trustee for creditors only (815, 828, 1097). 

From September 4, 1907, to September 18, 1907, the interviews 
between James T. Lennox and Mr. Brandeis and Mr. Nutter were 
almost daily. On September 18, Mr. Lennox declined to go on with 
the matter and help the assignee in discovering the assets and lia¬ 
bilities unless he received S500 per week (1131, 1127). Mr. Nutter 
said that this sum was unreasonable and would not be approved by 
the creditors, but that he would pay him $100 per week and perhaps 
could get approval of something better. This was declined by Mr. 
Lennox and he rendered little or no assistance to the assignee there¬ 
after (828, 1127, 290). 

Mr. Brandeis took substantially no active part in the matter after 
this, and Mr. Lennox did not consult him in any way or ask him to 
do anything (290). He last saw him in the matter on September 
19, 1907 (828). 

On October 4, 1907, Mr. Nutter submitted to Mr. Leahy a draft 
of his proposed report to creditors, and at Mr. Leahy’s request he 
inserted in it a statement that for some years Patrick T.ennox had 
not been active in the business, and made some other changes until 
they agreed upon the form of the report (825). No objection was 
made to the part ol the report which stated that P. Lennox & Co. 
was composed of Patrick Lennox and James T. Lennox. 

On October 24, 1907, Mr. Nutter learned for the first time, and 
from Mr. Leahy, that it was claimed that Patrick Lennox was not a 
Partner in P. Lennox & Co. (826). This put Mr. Nutter in a posi¬ 
tion where he was compelled by his duty as trustee to establish the 
fact of the partnership (831). Creditors to the amount of about 
$380,000 had assented to the assignment (829). 

During September and October, 1907, the investigations into the 
business were continued by Mr. Nutter, and he had several inter¬ 
views with Mr. Leahy about possible terms of composition. 

Mr. Nutter was unable to get from Mr. T.ennox adequate informa¬ 
tion concerning the property covered by the assignment (303, 314), 


24 


NOMINATION OF LOUIS D. BRANDEIS 


and the creditors insisted that bankruptcy proceedings were neces¬ 
sary. Mr. Lennox was aware of this (832), and Mr. Nutter wrote 
him to this effect (1130). Mr. Lennox raised no objection to bank¬ 
ruptcy proceedings. 

Mr. ISFutter made repeated requests for information from Mr. 
Leahy as to the property of Patrick Lennox, but did not secure it 
(291, 1130). He became convinced that bankruptcy proceedings 
were necessary. 

On October 31, 1907, Mr. Nutter, Mr. Herrick—representing Lee 
Higginson & Co., large creditors—and Mr. Leahy had a conversation 
at which it was stated by Mr. Nutter that bankruptcy proceedings 
seemed inevitable (829). He reported this to James T. Lens ox by 
letter on November 9, 1907 (1130), and informed him that, under 
the circumstances, if a composition was to be effected it would neces¬ 
sitate bankruptcy (1130). 

On November 11, 1907, Mr. Nutter issued a report to the creditors, 
stating that the estate could be administered in bankruptcy better 
than under the assignment (830). 

Under the Massachusetts law, a voluntary assignee has no power 
to compel the assignor to submit to an examination as to the property 
covered by the assignment. 

Between November 13, 1907, and January 4, 1908, several peti¬ 
tions in bankruptcy were filed on behalf of clifferent creditors. The 
one on which Brandeis, Dunbar & Nutter appeared was brought first 
and by Allen Lane & Co. and other creditors (830). No compensa¬ 
tion was paid by these (836, 847) creditors. 

Mr. Lennox says that Mr. Nutter told him that he was assignee 
for the benefit of his creditors and not his counsel. Mr. Nutter told 
Mr. Lennox that he had better get independent counsel (836, 1126). 
This was prior to October 21, as Mr. Nutter saw him last on October 
21 (290, 836, 1132). 

On November 18, 1907, Mr. Shei’man L. Whipple began to act as 
counsel for James T. Lennox and continued to do so for two 3 ^ears or 
more (290). He promptly saw Mr. Brandeis and told him that Mr. 
Lennox claimed that Mr. Brandeis had undertaken to act as his 
counsel. Mr. Brandeis at once told him the facts (289). 

In the bankruptcy proceedings an answer was filed alleging on 
behalf of Patrick Lennox that he was not a partner in P. Lennox & Co. 
and that the assignment had been obtained by fraud (834). The 
manifest duty of the trustees was to maintain the integrity of the 
assignment and the existence of the partnership which had made it. 

No evidence was offered in support of the allegation that the 
execution of the assignment had been obtained by fraud. 

Mr. Lennox said that his only criticism of Mr, Brandeis or of 
Mr. Nutter was that Mr. Nutter would not pay him at the rate of 
$500 per week (828, 1131). 

The stenographer’s transcript of the interview defining Mr. Brandeis's 
relation to the matter was offered in evidence in the hearino-s in 
bankruptcy (1164). 

1’he case was heard before a referee in bankruptcy, who found 
that the partnership existed (847). This was followed by a' trial 
before a jury, at which the court directed a verdict (1167) and 
then the case was taken by Patrick Lennox to the circuit court of 
appeals, without success (847). 



NOMINATION OF LOUIS D. BKANDEIS. 


25 


Mr. Nutter, Mr. Herrick, and Mr. Hall became trustees in bank¬ 
ruptcy (830, 1170). The administration as assignee and trustee 
took four years (1144). 

Counsel for Mr. Lennox and the trustees negotiated for a composi¬ 
tion offer and finally one was made by which the firm creditors 
received 40 per cent and the individual creditors 100 per cent, and 
the bankruptcy was closed (839). 

Neither Mr. Brandeis nor Mr. Nutter ever deviated from the course 
which Mr. Brandeis outlined as the only one upon which he would 
act in the matter, that of trustee for the benefit of all the creditors 
alike, and of counsel for the trustee. Only the surplus, if any, was 
to go to the debtor. All the steps taken were necessary to protect 
the creditors and were taken in performance of the duty incurred. 
No compensation was received from any source, except out of the 
trust fund (847, 1145). 

No retainer or other payment for services was ever made to Mr. 
Brandeis or his firm by Patrick Lennox or James T. Lennox, Weil, 
Farrell & Co., or any other creditors (315, 847, 1113, 1145). 

When the assignment was made there was no reason to suppose 
that there was the slightest conflict of interests between the debtor 
and the creditor (289, 312). It was understood that Mr. Brandeis 
was to act as counsel for the trustee. In that sense he was to act for 
the creditors and for the debtors in common (289, 312) to the point 
where either had any interests adverse to those of the trustee. The 
trustee and his counsel and the debtors had the common moral and 
legal duty of discovering, disclosing and getting into the possession 
of the trustee all the property. They must perform that duty. 
When the debtors unexpectedly failed (303, 1134) to perform this 
duty, their conduct necessitated legal proceedings. They, and not 
the trustee or his counsel, were the ones who acted adversely to the 
common understanding on which the matter had been undertaken 
(289). Only that adverse action made the bankruptcy proceedings 
necessary (289, 834, 1130). The trustee and his counsel were not 
relieved (299,300) from performing their affirmative moral and legal 
duty by the fact that the debtors then took an adverse position, 
contrary to the understanding upon which the assignment was made. 
If the debtors withheld property, the assignee must take action to 
get it. If the debtors would not disclose their property, the assignee 
must take action to discover it. The examinations of James T. 
Lennox were in pursuance of the duty of the trustees to ascertain 
about the property of the debtors (820, 822, 823, 1007, 1170). This 
was the only action taken. No unwarranted feeling of embarrassment 
or taste (296) could justify the assignee or his counsel in neglecting 
the performance of this duty (290, 834). 

When criminal proceedings were instituted against Mr. Lennox, the 
assignee and his counsel were under no duty to prosecute. They 
were asked to do so and declined (297, 304, 305, 837, 1145, 1170). 

Mr. Whipple, who was his adversary, saw clearly that Mr. Brandeis’s 
conduct was upright throughout (299). 

Neither Mr. Brandeis nor Mr. Nutter declined to act for Mr. Lennox 
so far as it was consistent with the duty of a trustee for creditors 
(1131), and Mr. Lennox makes no criticism of either, except that Mr. 
Nutter would not pay him a salary of $500 per week (1132). 


26 


NOMINATION OF LOUIS D. BRANDEIS. 


The events in this case were due entirely to the fact that the 
debtors went back on the plan to which they agreed and under which 
the matter was taken up, namely, to devote their property fully and 
without hesitation to the payment of their debts. They were never 
deserted in any way. When they refused their assistance and one of 
them denied a partnership which unquestionably existed and failed 
to turn over assets and charged fraud of which there was no evidence 
whatever, they were deserting, and it would have been dishonorable 
in the trustee and his firm to assist in the attempt or to fail to take 
all necessary steps to secure the performance of the trust. Such a 
course vrould have been inexcusable and the one pursued was the 
only possible one. The debtors were fully informed of everything 
and were never refused any assistance consistent with the trust. 
The course pursued by Mr. Brandeis and his firm w^as consistent and 
honorable throughout. No better one can be suggested (833). With 
Lennox's knowledge and consent Mr. Nutter became assignee. It is 
inconceivable that Mr. Brandeis would thereafter desert his partner. 

GLAVIS APPEARANCE. 

It is charged that Mr. Brandeis was guilty of unprofessional con¬ 
duct in appearing for Louis B. Glavis at the expense of Collier’s 
Weekly, and concealing the source of his compensation from the 
select committee engaged in the investigation of the Department of 
the Interior and of the Bureau of Forestry. (Senate 719, 61st Cong., 
3d sess., 1072.) 

On August 18, 1909, Louis B. Glavis, then Chief of Field Division 
of the General Land Office, made a report to the President setting out 
facts which, if true, indicated that Secretary Ballinger was not a fit 
official for hishigh position. On September 13, 1909, the President ren¬ 
dered a decision exonerating Mr. Ballinger and authorizing the dismissal 
of Mr. Glavis, which immediately followed. On September 20, 1909, 
Mr. Glavis wrote the President of his intention to make public the 
charges leading to what he believed Was his unwarranted dismissal. 
(Investigation, 888.) On November 13, 1909, the charges were pub¬ 
lished in Collier’s Weekly (330). On January 19, 1910, the resolution 
was passed by Congress for the investigation. This resolution con¬ 
tained a provision that “Any official or ex-official of the Department 
of the Interior, or of the Bureau of Forestry in the Department of 
Agriculture, whose official conduct is in question, may appear and be 
heard before the said joint committee or any subcommittee thereof, 
in person or by counsel” (988). 

Collier’s Weekly having taken the legal and moral responsibility of 
presenting Mr. Glavis’s charges to the country, felt it imperative to 
see that all proper steps were taken to have these charges verified 
before the committee (453-460; Sullivan, 325-335, 385). Collier’s 
accordingly asked Mr. Brandeis to act for Glavis (455) and undertook 
to pay him therefor, and subsequently did pay him. No pretense 
was made that Mr. Brandeis was acting as mipaid counsel or for the 
public, and it was probably assumed by the committee that he was 
to be paid (994) and that Glavis was not in'a position to pay for five 
months of continuous work hy a man of Mr. Brandeis’s standing and 
ability. (Senator Fletcher of that committee, 994.) 


NOMINATION OF LOUIS D. BKANDEIS. 


27 


It was thought by Collier’s Weekly that it was not seemly to 
attempt to get the credit of conducting the investigation (455), but 
no attempt whatever was made by anyone to conceal the fact that 
Mr. Brandeis was to be paid by Collier’s (330, 332, 455). It was 
freely talked about (332, 455). It was known to members of the 
Interior Department who were in opposition (455). Wlien occasion 
arose, the lact that Collier’s Weekly was paying IVIr. Brandeis was 
referred to in the paper itself (706). 

Mr. Brandeis’s efforts in the case were directed toward establishing 
the truth of the Glavis charges. He made no effort to have his own 
position or any belief that he was acting merely as a friend give any 
added weight to these efforts; and no occasion arose on which there 
would have been any propriety in his parading the fact that some one 
other than Glavis was the source of his compensation. That fact 
was assumed generally. If it were improper to give or to take 
compensation for such services except from the party of record, no 
poor man could ever have competent counsel in any extensive 
proceedings. These investigations are not social functions, but 
serious afiairs. The truth is the goal to be attained. The facts are 
the same no matter who may have paid the lawyers. The committee 
did not ask Mr. Brandeis who was paying his fee, because then it 
made no difference. The fact that during the trial Mr. Finney, of 
the Interior Department, knew that Mr. Brandeis was employed by 
Mr. tiapgood, of Collier’s (455), seems to me to demonstrate that 
those interested knew the situation then as well as they do now. 
This incident has nothing in it detrimental to the nominee. 

MR. Thorne’s opposition. 

Mr. Braneleis was emplo 3 ^ed to represent the Interstate Commerce 
Commission in the Five Per Cent Advance Kate case of 1913, and 
worked in the matter for about a year. His letter of employment 
was as follows: 

We are of course aware of the fact that the carriers will not fail fully to present their 
side of the case, and the commission has felt that every effort should be made in the 
public interest adequately to present the other side. Would you care to undertake 
that burden? As you are already aware, in a number of cases of large importance and 
wide interest special counsel have been retained by the commission. As a matter of 
fact that has not been their real relation in these controversies. They have been 
retainerl by the commission not as advocates or to support any special theory of the 
issues involved, but as a means by which the commission might be advised of all the 
facts and not have to decide the issue upon a record made up largely in one interest. 
It is with this general thought in mind that the commission has reached the conclusion 
that in the Rate Advance case special counsel should be retained, and I have been 
asked to ascertain whether your engagements and inclinations are such as to permit 
you to undertake the task of seeing that all sides and angles of the case are presented 
of record, without advocating any particular theory for its disposition. In making 
this last observation you wdll of course understand that you will be expected to 
emphasize any aspect of the case which in your judgment, after an examination of 
the wTiole situation, may require emphasis. The commission, however, wishes to 
avoid a record based solely on a particular view or theory. 

Flis duties were (1) to get before the commission those facts omitted 
by the carriers which might help the other side (2) to see that all 
sides and angles of the case were presented and (3) to emphasize any 
aspect of the case which in his ‘‘judgment” required it (8). 


28 


NOMINATION OF LOUIS D. BEANDEIS. 


Mr. Thome was employed by a number of railroad or public utilitieif 
commissions of several States and by organizations of shippers, som#' 
having general and some special and peculiar interests (7, 48, 53, 90), 

Mr. Brandeis acted for the commission and not as a partisan (78, 
87). He collected (76), formulated, and presented bis evidence 
through the employees of the commission (51), and by the examination 
or cross-examination of the railroad employees and their witnesses 
(79) and not in connection with Mr. Thorne or any other counsel for 
particular interests (82). 

Mr. Thorne prepared and presented his evidence in his own way 
‘‘independently,as the witness puts it (80, 82). 

The other attorneys for the railroads and for the shippers did the 
same. 

The hearings for the reception of evidence began in October or 
November, 1913 (80), and closed on April 7, 1914, and the case was 
then set for the fihng of briefs and the beginning of arguments on 
April 27, 1914 (15). 

Counsel separated and prepared their briefs and arguments without 
conference or communication with each other concerning them 
(17, 50, 61, 82). 

On April 27, 1914, they gathered, the briefs were filed, and it was 
arranged that the shippers^ counsel should close their arguments 
first, with Mr. Thorne as the last, then Mr. Brandeis, and then counsel 
for the raih’oads. 

On April 27 or 28 (76) Mr. Thorne asked Mr. Carmalt, the ex¬ 
aminer attached to Commissioner Harlan’s office and now chief 
examiner for the commission, what Mr. Brandeis’s position in argu¬ 
ment would be, and Mr. Carmalt told Mr. Thome that Mr. Brandeis 
“would take the position that the net operating income of these 
carriers was not adequate, with especial stress on the lines in Central 
Freight Association territory, but that he would take the further 
position that the methods which the carriers had pursued to obtain 
greater revenues, namely, a horizontal increase of 5 per cent, was not 
the proper method of increasing their revenues” (19, 76, 81, 83, 84). 
Mr. Thorne also asked Mr. Brandeis on that day and received sub¬ 
stantially the same information as to his position (19). 

This brief was understood to take substantially the same position 
(20, 61). 

It was two or three days later, on April 30, that Mr. Thorne began 
his argument. 

He was followed by Mr. Brandeis, who opened by saying that he 
had reached the following conclusion: 

First, that on the whole the net income, the net operating revenues of the carriers 
in official classification territory are smaller than is consistent with their assured pros¬ 
perity and the welfare of the community, and that this is notably true of the C. F. A. 
lines, and it is true practically as to other lines also, because of the C. F. A. scale! 

In view of this, it is desirable that steps should be taken as promptly as reasonably 
may be to increase those net revenues. 

Secondly, that the method proposed by the carriers for increasing these net reve¬ 
nues is essentially unsound; that it is, except as to a small part of the tariffs that have 
been submitted, entirely too low, and would, if approved, involve the exceedin<y of 
the powers vested by Congress in this commission; and as to that small part'of'the 
tariffs as to which it would be legal to approve them, it would be extremely unwise, 
both for the carriers and for the commission, to grant that approval. 

Third, that there is nothing in the conditions of the carriers which should prevent 
the adoption of those methods of increasing their revenues which are conformable to 


NOMINATION OF LOUIS D. BRANDEIS. 


29 


and in accordance with their interests and that of the community, and that there 
exists, as has been indicated on this record, adequate means of increasing those reve¬ 
nues without resort to the unsound, largely illegal, and undesirable method of the 
horizontal increase (33). 

Mr. Brandeis had developed in evidence with great dihgence and 
skill the facts (77) which nnght bear adversely (84) on the railroads. 
The evidence as a whole had convinced him of the soundness of the 
conclusions stated. He would have been derehct in his duty to the 
commission employing him if he had concealed this from his em¬ 
ployers (62, 63, 64, 66, 68, 84, 92). His conclusions should be those 
which he could advise the commission to write into an opinion. They 
could accept or reject his advice, but were employing him for such 
help as he could give (63, 71). 

On the merits of his conclusion, the difference between ^^Ir. Thorne 
and him appears to be that Mr. Thorne grouped (32) the net revenues 
of a whole body of carriers and struck an average which was, of course, 
not available to the many carriers who were below that average and 
some of them below zero, whereas Mr. Brandeis stated these revenues 
in detail in his brief (p. 55) and classified them into four classes—(1) 
above 12 per cent, (2) 6 to 12 per cent, (3) 0 to 6 per cent, and (4) 
below 0 (988). 

Rates fixed by the average of revenues derived from different and 
not comparable services, would not save the community (66) from 
receiverships over those roads performing a necessary service and 
having too small net revenues or none at all (988). 

Counsel for shippers and their clients recognized the correctness 
of Mr. Brandeis^s position (14, 88, 89). 

kir. Brandeis opposed the increase and filed an elaborate brief 
(11, 89), and argued in opposition, taking the position that even if 
the ‘^net revenues’’ of some of the railroads were inadequate the 
rates sought to be raised did “yield an adequate return to the com¬ 
mon carriers, the railroads operation in official classification terri¬ 
tory” for the services rendered, so that the first question laid down 
by the commission (12-13) should be answers in the affirmative. 

Mr. Brandeis’s remark as to the surplus was elicited by Mr. Thorne’s 
inquiry and was not a part of his argument (32). It is to be read on 
the light of his argument that rates were not to be fixed by reference 
to surplus earnings but that if the rates were fixed at such an amount 
that railroads properly managed had an adequate return and no 
more, any excess produced by extra skill and diligence should not be 
taken from them, by adopting a fixed limit to allowable earnicgs. 
He desired to increase the incentive for greater efficiency (31). 

The increase in rates sought by the carriers was denied on the 
grounds urged by Mr. Brandeis (36). 

Later, in the light of the new conditions created by the European 
war, a part of the increase sought was granted, against his opposi¬ 
tion (36). 

Mr. Brandeis performed his duty fully and with due regard for all 
parties and counsel interested, and for the commission which retained 
him as their counsel. 

No complaint has been made by the commission, nor by any member 
of it, that I am aware of. Suppose Mr. Brandeis had taken the 
opposite view and had “decided” every point according to the view 
01 ktr. Thorne, would he then have considered such a course wrong 1 


30 


NOMINATION OF LOUIS D. BRANDEIS. 


The fact that the commission adopted Mr. Brandeis’s view forces 
the conclusion that if Mr. Brandeis was culpable so is the commission. 
If he, as their attorney, advised them to do wrong and they did it, 
we must conclude that they indorsed the wrong or are incompetent, 
a conclusion which would shock the judgment of the country. In 
my opinion this charge is without any merit whatever. 

FREDERICK M. KERRY. 

It is suggested, rather than charged, that it was improper for Mr. 
Brandeis to receive information from Mr. Kerby because he was in 
the employ of Mr. Ballinger (650). This refers to the Ballinger case. 

Kerby was in the employ of the United States, was paid by the 
United States, and his duty of fidelity was as much to the U^nited 
States as to his immediate superior. It is not necessary to go further 
on that point. He was a stenographer assigned to work under Mr. 
Ballinger when he was the Secretary of the Interior. 

On August 18, 1909, Louis R. Glavis, then Chief of Field Division 
of the General Land Office, made a report to the President setting 
out facts which, if true, indicated that Secretary Ballinger was not a 
fit person for his high position. On September 13, 1909, the Presi¬ 
dent rendered a decision exonerating Mr. Ballinger and authorizing 
the dismissal of Mr. Glavis, which immediately followed. 

On January 19, 1910, a joint resolution was passed for an investi¬ 
gation of the Department of the Interior and of the Bureau of For¬ 
estry. 

In the investigation which followed, the main issue was whether 
Mr. Ballinger or Mr. Glavis was wrong. Upon this issue Glavis 
suffered from the inevitable presumption that the President’s de¬ 
cision was right. It therefore became important to show the fact 
that the decision had been drafted, in substantial respects, in Mr. 
Ballinger’s office after an ex parte presentment of the facts by. Mr. 
Ballinger, and had been rendered in an unwarranted reliance upon 
him and his subordinates, and that Mr. Ballinger and his subordi¬ 
nates were disingenuous in their statements. 

In September, 1909, Oscar Lawler, Assistant Attorney General, 
assigned to the Interior Department, drafted a letter of decision for 
the President to sign, condemning Glavis and exonerating Mr. 
Ballinger. He dictated this in part to Kerby. 

Shortly after the publication of the President’s letter exonerating 
Mr. Ballinger, Hugh A. Brown, a friend of Kerby’s, asked him what 
he thought of the President’s letter, and Kerby informed him that it 
was practically written in the Secretary’s office (988; S. Doc. 719, 
61st Cong., 3d sess., pp. 4395-4489, 4398). In response to a similar 
inquiry, Kerby also told another acquaintance, Arnold, who repre¬ 
sented the United Press (4398). These communications were sup¬ 
posed to be confidential (4398). At some time Brown told Mr. 
Garfield that the draft had been prepared in the Secretary’s office. 
Brown had been private secretary to Mr. Garfield when he was 
Secretary of the Interior. 

In February, 1910, Brown told Kerby that Mr. Garfield knew that 
the letter had been prepared in the Secretary’s office, and that he 
might be called as a witness (665). Kerby, apparently recognizinc' 



NOMINATION OF LOUIS D. BKANDEIS. 


31 


the right of the investigating ©ommittee to have the truth and his 
own duty to disclose it, feared that he might be dismissed as Glavis 
had been, and he therefore sought an interview with Mr. Garfield to 
see if there was not some way in which the information could be 
brought out without his being called. (S. Doc. 719, 4397, 4441.) 
Brown undertook to arrange this meeting for a particular evening, 
between F'ebruary 10 and 15, at the house of Mr. Gifford Piiichot, 
where Mr. Garfield was staying. Kerby, supposing Brown had made 
this appointment, called on Mr. Garfield (665) and told him of his 
desire to avoid being called if the fact could be brought out in some 
other way. Mr. Garfield asked him to talk with Mr. Brandeis, who 
was at the house at the time, and he did so. This was the first time 
that he had met Mr. Brandeis (666). 

After this conference Mr. Brandeis made several calls for papers, 
evidently seeking production of the Lawler memorandum (648) 

On or about May 8, 1910, Arnold introduced Robert S. Wilson, of 
the Newspaper Enterprise Association, to Kerby (S. Doc., 4400) and 
Wilson sought to get a statement of the facts for publication and 
assured Kerby of a position if he was dismissed; but Kerby declined 
to give it as he had a family dependent upon him (S. Doc., 4413). 
Later, on reading Mr. Ballinger’s testimony (S. Doc., 4415, 4456), 
and seeing that the memorandum was not produced in response to 
the calls (S. Doc., 4419, 4443, 4449, 4460), and being sure that it was 
known that there was a copy of the letter in the department (S. Doc., 
4419, 4429, 4448, 4452), and observing that a majority of the com¬ 
mittee had declined (S. Doc., 4493) to call on the President for the 
production of the draft letter, he decided to publish the facts and so 
to force the production of the letter (649). 

He had an interview with Mr. Brandeis at Wilson’s office, in which 
Mr. Brandeis told him that he thought it was impossible for him to get 
the facts before the committee, but declined to advise him whether 
or not to publish the story (651). 

This was the second and last time that Mr. Brandeis ever talked 
with him (S. Doc., 4448). In neither interview did Mr. Brandeis^ 
urge him to make the disclosure or offer him any mducement (S. 
Doc., 4431). ^ 

Kerby decided to publish the facts and they appeared in the 
newspapers of May 14. On May 17, at the suggestion of the 
chairman of the committee, Kerby was called as a witness and ex¬ 
amined by Mr. Ballinger’s counsel and by Mr. Brandeis and testified 
in detail as to these facts (650, 667). There are no limits to suspi¬ 
cion, but there are rules of evidence, as well as just ways for deter¬ 
mining the probatory effect of facts. Shah we ignore the proved facts 
and indulge a suspicion in order to condemn the nominee ? I can not. 
The facts in this matter leave no stain upon Mr. Brandeis. 

FAIR TRADE LEAGUE. 

No charge has been suggested against Mr. Brandeis in connection 
with this league. 

Mr. Brandeis has spoken in support of the price-maintenance 
principle and of the provisions therefor embodied in the Stevens 
bill. This has been without compensation and because of his belief 
in the principle underlying the bill (812, 976). 


32 


NOMINATION OF LOUIS D. BRANDEIS. 


The evidence under this head was brought out at the instance of 
the committee for the same reason as stated under the heading 
“Dingley bill wool duty.” 

EQUITABLE POLICYHOLDERS^ PROTECTIVE COMMITTEE. 

It is charged that Mr. Brandeis, or his firm, was paid for his serv¬ 
ices as counsel for this protective committee, and subsequently 
accepted employment by the Equitable Life Assurance Society in a 
manner that was unprofessional (886). 

From 1901 to the present time, Brandeis, Dunbar & Nutter have 
•acted from time to time in different matters for the Equitable Life 
Assurance Society when that society had occasion to employ counsel 
in Boston (690). 

In 1905 strife developed betwen the different officers of this society; 
and thereupon a number of large policyholders formed a protective 
committee to investigate and determine what, in their opinion, 
should be done for the best interests of the society, and Mr. Brandeis 
acted as unpaid counsel for this committee. He and the committee 
criticized the methods which had been pursued by the officers (669) 
and made many suggestions for improving the methods of this and 
other life insurance companies (689, 696). The committee con¬ 
tinued as long as its services were of value (698). One of its members 
became a director (971). The committee was not designed to be 
antagonistic to the society, but for its protection and benefit (972). 
Mr. Brandeis rendered faithful, diligent, and satisfactory services 
to the committee (971). His emplojmient by the company was that 
of attorney in specific cases, having nothing to do with the company’s 
management. He had no retainer, but was paid for what he did. 
I can see nothing to criticize in his conduct. 

NEW YORK, NEW HAVEN Sr HARTFORD RAILROAD CO. MERGER, 

It is charged that Mr. Brandeis was in some way responsible for 
the destruction of the financial condition of the New York, New 
Haven & Hartford Railroad Co (123). This charge is without foun¬ 
dation (271). 

In 1907 and thereafter Mr. Brandeis did a large amount of public- 
spirited work in attempting to prevent the acquisition or retention 
by the New York, New Haven & Hartford Railroad Co. of the control 
of the Boston & Maine Railroad Co. and other transportation facil¬ 
ities in New England, tending, as he then claimed, to produce arti¬ 
ficial transportation monopoly and suppression of normal railroad 
competition (809). 

He investigated and made public the financial condition of this 
railroad (271, 618, 627). He w^ bitterly assailed for this (618, 620, 
627, 642). The correctness of his position is now generally conceded 
(271, 638, 639, 645, 641). This extensive work was done without 
compensation (991). 


WILLIAM F. FITZGERALD. 

It was insinuated that Mr. Brandeis counseled an improper method 
for obtaining additional finances for the Old Dominion Copper Mining 
& Smelting Co., improperly concealed a report from stockholders, and 


NOMINATION OF LOUIS D. BRANDEIS. 


33 


went over to interests adverse to those of the Old Dominion Copper 
Mining & Smelting Co. because of the money to be obtained thereby 
(1225). 

These insinuations were so entirely unwarranted that the entire 
committee thought it unnecessary to hear the facts in reply (1251). 

From January 9, 1902, to April 2, 1902, Mr. Brandeis acted for Mr. 
Fitzgerald, Mr. Smith, and others in obtaining sufficient proxies to 
olect a new board of directors for the Old Dominion Copper Mining 
& Smelting Co. in place of the board favorable to Albert S. Bigelow, 
then president of the company (1246) (1228). On April 2, 1902, the 
new board was elected and Charles Sumner Smith was by it elected 
president of the company, and has remained the president ever since. 
The board of directors selected Mr. Brandeis as the counsel for the 
company, and he never was counsel for Mr. Fitzgerald in this matter 
thereafter (1247) (1231). He instituted suits against Mr. Bigelow 
and ^Ir. Lewisohn to discover alleged promoters' profits taken by 
them in the organization of the company in 1895 (1247). 

In the late summer of 1903 it became apparent that the company 
must have additional funds. A plan was formed to secure these 
funds by having the company issue bonds to the extent of $750,000 
with a bonus of stock to a securities company, the stock of which 
should be subscribed for by all of the stockholders in the Old Domin¬ 
ion Copper Mining & Smelting Co. Mr. Fitzgerald testified that this 
plan failed because only about one-third of the stockholders availed 
themselves of the opportunity to subscribe (1248). 

At this time, in October, 1903, negotiations were taken up between 
the company and men connected with Phelps, Dodge & Co., owners 
of the stock of the United Globe mines, a corporation owning mines 
adjacent to those of the Old Dominion Copper Mining & Smelting Co. 

These negotiations finally resulted in a jJan for the formation of a 
holding company, organized under the laws of the State of Maine, 
called the Old Dominion Co. This company was to acquire the 
stock of the United Globe mines and the stock of such of the stock¬ 
holders in the Old Dominion Copper Mining & Smelting Co. as wished 
to exchange their shares for shares in the new company. 

This plan involved the consideration of the advantages which 
would result from this connection with the United Globe mines, in 
the value of the mines and the known financial strength and mining 
ability of Phelps, Dodge & Co. 

The entire board of directors of the Old Dominion Copper Mining 
& Smelting Co., including a partner of Mr. Fitzgerald, was favorable 
to the plan. Mr. Fitzgerald desired to have a receiver appointed 
for the company and Mr. Smith opposed this (1250, 1282). 

Mr. Smith requested a mining engineer to examine the United 
Globe mines (1281). He made an examination involving only a few 
hours (1281) and made a report to the effect that the United Globe 
mines property did not have a value as high relatively to those of 
the Old Dominion Copper Mining & Smelting Co. as the proportion 
of stock which it was proposed should go to the stockholders of the 
United Globe mines had to the value of the stock which it was pro¬ 
posed should be received by the stockholders in the Old Dominion 
Copper Mining & Smelting Co. Mr. Smith did not feel that the report 
of this cursory examination was of any value and believed that the 
connection with the stockholders in the United Globe mines had a 
Ex. Kept. 2, pt . 1,04-1-.3 


34 


NOMINATION OF LOUIS D. BRANDEIS. 


value greatly in excess of what was to be gained from the acquisition 
of the properties which they owned (1281). Mr. Smith announced 
that the engineer’s report was at the company’s office, and many 
stockholders did come in and see the report and were given an 
explanation of its value (1281). He beheved that the report alone, 
if pubhshed, would be misleading rather than helpful to stockholders 
(1281, 1283). He accordingly ffid not publish this report. In this 
he acted on his own initiative, and Mr. Hrandeis was not responsible 
for its not being pubhshed (1282). At the end of October Mr. Fitz¬ 
gerald requested the publication of the report (1252). It was pub- 
ushed on November 11, 1903 (1254). 

The agreement under which the Maine company was formed was 
made after this, and the holders of a very large proportion of the 
stock in the Old Dominion Copper Mining & Smelting Co. exchanged 
their stock, and the enterprise has since been very successful and 
to the advantage of the stockholders who exchanged their stock and 
to those who did not (1284, 1236). 

As a part of this new organization, it was provided that whatever 
the Maine company received in dividends from the New Jersey com¬ 
pany, resulting from the suits against Bigelow and Lewisohn, and 
certain other assets amounting to about $94,000, should be paid over 
by the Maine company to trustees for the benefit of the existing 
stockholders in the Old Dominion Copper Mining & Smelting Co., 
who transferred their stock to the Maine company, or to those per¬ 
sons to whom they might transfer their rights, the trustees to receive 
as compensation an amount not exceeding 5 per cent of the funds 
handled (1280). The trustees selected were Mr. Smith and Mr. 
Hoar, who was then a partner in Brandeis, Dunbar & Nutter. The 
purpose of this arrangement was to have these proceeds go to the 
benefit of the existing stockholders in the New Jersey company, and 
not go to those stockholders in the Maine company who had become 
such by reason of having been stockholders in the United Globe 
mines U272). 

At this time the litigation against Mr. Bigelow had been going on 
for more than a year without any specific arrangement having been 
made as to the amount to be charged by Brandeis, Dunbar & Nutter 
as counsel. This situation continued for three years more, and until 
the suits had passed the stages of demurrers and the greater part of 
the evidence in support of them had been taken. 

In the fall of 1906, four years after the suit was started, the board of 
directors desired to have some specific agreement made as to the 
liability which they were incurring for the services of counsel. This 
resulted in an arrangement that the payments on account of these 
should be not exceeding 6 per cent on the fund of $94,000 (1275)— 
that is, $5,500 a year (1279)—and that in addition there should be 
paid as a balance for these services an amount not exceeding 10 per 
cent of the judgment or settlement obtained in the cases (1276). 
This amount was suggested by Mr. Smith (1275) and approved by 
the board of directors, who believed that this would be a reasonable 
arrangement (1276). The company considered a settlement at one 
time of a hundred thousand dollars (1285), subsequently five hun¬ 
dred thousand dollars, and then a million dollars, but ultimately 
about two million dollars was obtained (1276). The litigation inci¬ 
dent to this claim or growing out of it has been conducted during 
about 13 years in about 15 courts (1256). The payments wffich 


NOMINATION OF LOUIS D. BRANDEIS. 


35 


have been made have been based upon the agreements, and every¬ 
thing has apparently been entirely satisfactory to all parties (1274). 

There is no evidence whatever that Mr. Brandeis did anything but 
what was entirely commendable. Mr. Fitzgerald, notwithstanding 
the questions urging to the contrary, said that he was not prepared 
to charge any irregularity in the matter (1245) and that he did not 
mean in any way, shape, or manner to suggest that Mr. Brandeis was 
working for the Phelps-Dodge interest or conspiring to do anything 
in that way, because he knew he was not (1246), and that to his 
mind Mr. Brandeis advised him that his best interests would be to go 
into the reorganization (1239). 

EDWARD R. WARREN. 

The charge, if any, to which Mr. Warren’s testimony related was 
that Mr. Brandeis had misrepresented to a committee of the Massachu¬ 
setts Legislature the attitude of the State board of trade concerning 
certain legislation as to the Boston Consolidated Gas Co. 

This company, or the interests which were consolidated into it, 
were urging to be allowed a capitalization of $24,000,000 (808). The 
Public Franchise League opposed this (1309). Mr. Warren was the 
chairman of the executive committee of this league which consisted 
of 12 or 14 men, and Mr. Brandeis acted as its counsel. The State 
board of trade cooperated in this opposition (1309). 

At or shortly before the beginning of May, 1905, it became evident 
that the legislation which the Public Franchise League wanted, 
namely, a general law concerning the consolidation of gas companies, 
could not be passed (1315), and that the company could be persuaded 
to accept a capitalization of $15,124,600 (1315) (808). This was 
somewhat higher than the Public Franchise League desired. 

Mr. Brandeis urged upon the league that they should support the 
bill for the capitalization of $15,124,600, and the executive committee 
voted unanimously, with the exception of Mr. Warren, to support 
this bin (1309). Mr. Sprague, representing the State board of trade, 
did not concur in this position (1309). 

The charge made against Mr. Brandeis was that he represented to 
the committee of the legislature that the State board of trade did 
concur. No evidence in support of any such charge has been offered, 
and on the contrary, it appears that Mr. Brandeis informed the legis¬ 
lative committee that the State board of trade could not favor mis 
compromise bill, and was opposed to it (1315). This fact was 
reported to Mr. Warren and to Mr. Sprague the same day (1315). 

These are all the charges and embrace every matter as to which 
the evidence related except the opinions evidence. 

I yield to none in respect for that “greatest judicial tribunal,” our 
Supreme Court. Its importance in our scheme of government is 
manifest; and that the appointing power has always looked upon the 
selection of the justices of that court as involving a sacred duty is 
proved by the great ability and probity of certainly a very large 
majority of its membership at all times in our history. Nevertheless, 
its membership must be recruited from the people, and anyone meas¬ 
uring up to the required standard in ability would be suspected at once 
of a lack of initiative and personal force if he had not made some 
enemies and had not engenclered an opposition, which could, if it felt 
so inclined, make a plausible fight against his confirmation. The 





36 


NOMINATION OF LOUIS D. BKANDEIS. 


nominee whose name is before us now has been an active, forceful 
quantity in his city, State, and country. He has enjoyed a large, 
lucrative law practice almost ever since he was admitted to the bar. 
He has been lor many years a member of the bar of the Supreme 
Com*t, a member of the American Bar Association, and of similar 
associations in his home State; a member of the board of visitors of 
Harvard Law School; a writer upon law as well as general subjects; 
a public speaker and lecturer with pronounced views, and with excep¬ 
tional powers for impressing those views upon the public; the unpaid 
counsel of labor organizations, protective associations, and other civic 
bodies; the paid counsel in many of the most important legal contests 
before the courts and other public tribunals; an arbitrator in strikes 
and labor disputes; and the special counsel of the Interstate Com¬ 
merce Commission. 

Such a man, so prominently active in public and private hfe and 
at the period when the construction of the Sherman law, the awak¬ 
ening of the States to their duty concerning industrial combinations 
and the determination of the dividing line between State and National 
power, is bound to have been engaged in contests before the courts 
and before legislative bodies more or less bitter; and he would indeed 
be a human prodigy if he had not aroused some bitter antagonisms. 
It is in evidence that there was a systematic campaign of advertise¬ 
ment to injure him in the estimation of the public. I must, there¬ 
fore, either decide that the active, earnest, fearless man who might, 
in the discharge of his duties in his own way, arouse such opposition, 
is forever debarred from judicial appointment, or else inquire into 
the grounds of the opposition and determine whether or not such 
opposition is based upon good and sufficient reasons or otherwise. 
Anyone who reads the protests made against Mr. Brandeis must come 
to the conclusion that the opinion expressed by those who imder- 
take to give his reputation is based upon some one or the other of the 
charges heretofore discussed at length, and since I find that no fault 
can be attributed to the nominee as to any of those charges in the 
fight of the facts brought before us, then I am bound to say that 
those who express the adverse opinion have been erroneously influ¬ 
enced by the advertising campaign carried on against him. 

To give an idea of the character of the cai^aign which has been 
waged against Mr. Brandeis, I clip from the Wall Street Journal, of 
March 27, 1916, under the headmg, ‘‘Sacredness in confidences,” 
the following: 

No lawyer can faithfully serve a client without gaining knowledge of that client’s 
peculiarities, strength in parts and weakness in parts, which would make him doubly 
valuable as a counsel to Ms opponent. 

When an attorney has accepted the confidence and compensation of one side and 
then gone over to the compensation and confidences of the other side, and the Presi¬ 
dent and Senate of the Umted States place Mm upon the Supreme Bench of the land 
a new era has dawned for the priest, the physician, and the advocate, or there is con¬ 
demnation for both bench and bar, for a Senate of lawyers, for a President, and for a 
party and its politics. 

When James Lennox in the presence of several witnesses unbosomed Mmself to Ms 
attorney and later found his $10,000 credited against the $48,000 received from the 
other side with the denial that his attorney was ever Ms attorney, what can we t hink 
of honor at the bar? 

But when that attorney goes to the United States Supreme Bench, what can the 
world say of honor witMn the Umted States with both bench and bar? 

Brandeis at the bar may represent individual wrongs, but Brandeis on the bench 
puts the United States before the world below even the present standards of his 
Teutonic ancestors. 


NOMINATION OF LOUIS D. BRANDEIS. 


87 


If the writer of the above will read the record of the evidence taken 
before the subcommittee I do not doubt that he will be ashamed of 
having penned it. It is absolutely false to say or intimate that Mr, 
Lennox ever paid Mr. Brandeis a cent, much less $10,000, for any 
services to be performed by the latter, or for any other purpose, an3 
Mr. Lennox never made any such claim; and yet the average person 
would infer from the above editorial that Mr. Lennox had paid Mr. 
Brandeis as a retainer the sum of $10,000. 

The testimony of Mr. Barron, to which I have already referred, 
shows that he fostered an advertising campaign against Mr. Brandeis, 
and yet when he was brought before the committee and asked for the 
facts upon which his campaign was based, and after the committee 
had examined every witness suggested by him, obtainable, we find 
that there is nothing in the conduct of Mr. Brandeis to warrant Mr. 
Barron’s opinion, and absolutely nothing to reflect upon Mr.Brandeis’s 
character as a man or a lawyer. It is suggested in the brief of counsel 
of the protestants that if a doubt shall be raised concerning the 
ethical conduct of the nominee, he should not be placed upon the 
Supreme Court. If that theory shall obtain, then it is possible^ by a 
campaign of slander, to bar the best men and the best lawyers in the 
country from the judicial office. I am not willing to indorse a 
campaign of slander, whether it was intended to be slander or not, 
when promulgated. 

If after full investigation I find, as I do, that Mr. Brandeis is not 
guilty of the things charged against him by his enemies, then it is my 
duty to say so and to give him the benefit of a pure life and his upright 
conduct, regardless of the slander. 

Judicial temperament is a thing of which it is not for man to judge 
except by actual experience on the bench. No one can tell whether 
a great lawyer will be a great judge until he has been tried. It seems 
to me that there is more in the life of Mr. Brandeis as shown by this 
record to incline one to the belief that he has the qualities of a good 
judge than there is to the contrary. It is remarkable that friend 
and foe alike speak of his great ability as a lawyer. The late Chief 
Justice Fuller advised one seeking a lawyer in the East, as follows: 
‘‘Go to Boston and see Mr. Louis D. Brandeis, as I consider him the 
ablest man who has ever appeared before the Supreme Court of the 
United States. He is also absolutely fearless in the discharge of his 
duties.” 

It is impossible to give in detail the testimonials to Mr. Brandeis’s 
fitness and his high character, and it is unfortunate that there are so 
many of these coming from every part of the United States, from 
lawyers, judges, college professors, business men, labor leaders, and 
people in all walks of life, that it would be almost impossible to print 
them. I do not doubt that if one takes the pains tg look at the 
protests upon the one side and the indorsements upon the other, in 
the light of the evidence in this case upon both, my conclusions will 
be found by him to be reasonable and fair. I therefore voted with 
the majority of the subcommittee to recommend confirmation. 

W. E. Chilton. 

I am authorized by Senator Fletcher to say that he concurs in the 
above. 


April 3, 1916. 


W. E. C. 


NOMINATION OF LOUIS D. BEANDBIS. 


Mr. Walsh, from the subcommittee of the Committee on the 
Judiciary, submitted the following 

VIEWS. 

ITo accompany the nomination of Louis D. Brandeis.] 

To the Committee on the Judiciary, 

United States Senate: 

The unusually grave character of the duty with which this commit¬ 
tee has been charged quite fully justifies, if it does not require, from 
each member thereof an expression of the course of thought through 
which he has arrived at the conclusion in consequence of which he 
assumes the responsibility for the recommendation he makes. 

The testimony taken by the committee is voluminous. In the 
infinite multiplicity of the duties devolving upon Senators it is quite 
vain to hope that any considerable number, except those upon whom 
the burden of investigation has been directly imposed, will read it 
all or read any of it. 

Outside of the Senate opinion will be based in very small part 
upon anything more trustworthy than a r4sum6 of the evidence col¬ 
lected by the committee. I assume the task of reviewing it with a 
just sense, as I hope, of the importance of the office to which it 
relates in our scheme of Government. The interest in the nomina¬ 
tion in respect to which we are called upon to act, manifested alike 
by the citizen in the humble walks of life and by those whose influence 
is nation wfide reveals the universality of the conviction that in large 
measure the liberties and the destiny of the American people have 
been intrusted to the great court to fill a vacancy in which the Pres- 
dent has named Louis D. Brandeis. 

It so happens that the nominee has awakened unrelenting enmities 
and fast mendships. He is the object of unrestrained admiration 
on the one hand and of fierce vindictiveness on the other. The 
qualities that evoke the just praises of those who believe in him need 
not engage our attention. It is conceded on all hands that in intel¬ 
lectual equipment and professional attainments he easily measures 
up to all requirements—indeed, in that respect his qualifications are 
superb. 


38 



NOMINATION OF LOUIS D. BEANDEIS. 


89 


His character is assailed, however, as too perverse to mstif^ the 
Senate in advising or consenting to his appointment. His private 
life appears to be blameless. It is not charged that he is corrupt, at 
least py any one not moved by reckless malevolence. The accusa¬ 
tions, if they may be so called, relate entirely to alleged disregard of 
ethical standards in his professional relations. Singularly enough, 
there is very little opportunity for dispute in respect to the facts 
constituting the incidents which the committee deemed worthy of its 
notice. 

There is wide divergence of view touching the significance of the 
facts disclosed. Interpreted by those bent on finding something to 
criticize or ready by prepossession to attribute discreditable motives 
to Mr. Brandeis, they assume a sinister aspect. Men of the highest 
character, frank admirers of that gentleman, who participated in the 
transactions in respect to which he is denounced, insist that his con¬ 
duct was either irreproachable or altogether honorable. It is par¬ 
ticularly important in this quite curious situation, in order to form a 
just estimate of the conduct and character of the nominee, to guard 
against the insidious influence of detraction and calumny. 

Long before his name came to the Senate for the high office of 
associate justice of the Supreme Court efforts were made through the 

E ublic press and by means of circulars widely distributed to bring 
im into disfavor and disrepute. Not unlikely some impression such 
as it was hoped might be conveyed may remain on the minds of 
some Senators who fell under the influence of these and like attacks. 
Moreover, it is scarcely to be expected that one unacquainted with 
local conditions, who has not followed with scrupulous care the 
inquiry as it proceeded, would be wholly uninfluenced by the fact 
that a considerable number of the members of the bar of Boston, the 
home of the nominee, have protested against the confirmation of his 
nomination and have organized to oppose it, and that some of them 
have testified that he is regarded m that community as untrust¬ 
worthy. These conditions make it imperative, before attempting 
to survey the particular transactions to which reference is made as 
justifying the ul opinion thus expressed, to have in mind some inci¬ 
dents in the career of Mr. Brandeis which may have predisposed those 
by whom it is entertained. 

It is clear that he has been a vigorous, aggressive, relentless antago¬ 
nist in aU his legal battles. Moreover, he has been successful. In 
illustration: One of the lawsuits in connection with which some 
misconduct was charged is referred to as the “Old Dominion case.’^ 
The nature of the derehction with which he was accused need not be 
adverted to. It was utterly puerile, the testimony drawing from a 
member of the committee (Senator Cummins) a public declaration 
that it was valueless. Mr. Brandeis had been employed to assist in 
securing stock or proxies sufficient to take the control of the Old 
Dominion Copper Mining Co. from the hands of one Bigelow and 
associates, who had promoted the company. The effort was suc¬ 
cessful and a new board elected, through which suits were brought 
in the name of the company by Brandeis as its attorney to recover 
of Bigelow the value of a large block of the stock of the company 
which it was averred they had fraudulently converted. The litiga¬ 
tion was bitterly contested in the courts of Massachusetts, New York, 
and New Jersey, repeatedly reaching the reviewing courts and even- 


40 


NOMINATION OF LOUIS D. BRANDEIS. 


tually the Supreme Court of the United States. Judgment was 
finally rendered against Bigelow for two and a quarter million dol¬ 
lars, on which, after a contest lasting 14 years, payment of upwards 
of $2,000,000 has been enforced. It may well be assumed that any 
man of whom a judgment in excess of $2,000,000 can be collected is 
one whose influence is felt even in a city the size of Boston, at least 
in the banking center and in financisd circles. Those who know 
something of the development of the copper-mining industry with 
which Boston has been long and creditably identified are aware of 
how commanding that influence was. It is quite reasonable to sup¬ 
pose that his social standing was in keeping with his great wealth 
and the magnitude of the enterprises with which he was associated. 
It was bad enough to be required to give up $2,000,000, but to be 
branded as having misappropriated so much of the property of the 
stockholders who had been induced to come into a corporation 
organized by him was a grievance that very naturally rankled. It 
is altogether probable that Mr. Bigelow would not express himself in 
complimentary terms concerning Mr. Brandeis if he were moved to 
speak of him. 

No wretch e’er felt the halter draw 

With good opinion of the law, 

and few with good opinion of the lawyer. So it is likely that all ^Ir. 
Bigelow’s friends, or most of them, share the ill opinion which he 
m^ be excused for holding of Mr. Brandeis, if he does cherish such. 

The part that Brandeis had in exposing the malefactors of great 
wealth who, in insolent contempt of the law, monopolized the trans¬ 
portation facilities of New England, merging them in the New York, 
New Haven & Hartford system, and milking the properties in the 
process is more generally known. These were the very high priests 
in the temple of Mammon. Boston was the New England as New 
York was the western terminus of that system. The fight was waged 
before the Legislature of Massachusetts and the railroad commission 
of that State long before it engaged the attention of the National 
authorities. Among many public-spirited citizens who, singly and 
through local organizations, attempted to prevent the absorption of 
the Boston & Maine by the New Haven, Brandeis was conspicuous. 
Before legislative committees and officials of the State government, 
in public addresses he declaimed against the consolidation. He 
not only attacked through pamphlet and the public press the design 
to impose a transportation monopoly on that highly industrial region, 
but he investigated and laid bare the financial condition of the com¬ 
pany, in consequence of which its stock, a few years later, dropped 
spectacularly, and the system was brought to the verge of bank¬ 
ruptcy. He asserted that its securities were not a safe or proper in¬ 
vestment for savings banks, by which they were held in great quan¬ 
tities. The timid deprecated his assaults and the guiltv assailed him 
with unrestrained venom. He was placarded through paid adver¬ 
tisements in the press as a public enemy. 

It will be remembered that the merger was accomplished, that after¬ 
wards suit was brought to dissolve under the Sherman Act, which was 
soon dismissed; that subsequently, pursuant to a resolution of the 
Senate, the affairs of the New York, New Haven & Hartford were 
investigated by the Interstate Commerce Commission; that the hear- 


NOMINATION OF LOUTS D. BEANDEIS. 


41 


ing r(3vealed a state of affairs at whicli the country stood aghast; that 
a new dissolution suit was instituted, resulting in a “consent’^ decree; 
that the directors participating in the merger transactions were 
indicted and upon trial some were acquitted and as to others the jury 
disagreed. We need not concern ourselves as to whether Mr. Brandies 
was right or was wrong in the warfare he thus waged. It may be that 
the absorption of the New England lines was a benevolent assimilation 
and not a criminal conspiracy. It may be that his elaborate figures 
touching the financial condition of the New Haven were not fully and 
altogether justified by the investigation conducted six or seven years 
afterwards by the Interstate Commerce Commission. I am endeavor¬ 
ing now merely to bring to mind some idea of the atmosphere breathed 
by those who speak in disparagement of him. To enforce this point 
I quote from testimony elicited on cross-examination of two of them— 
both very honorable gentlemen— Mr. Storey and Mr. Hutchins, of the 
Boston bar. In the testimony of the former will be found the 
following: 

Senator Walsh. Is it your opinion that the conduct on the part of Mr. Brandeis was 
calculated unjustly to injure the New Haven road? 

Mr. Storey. I do not know that I can or ought to express any opinion on the subject. 
The feeling was that there were better ways of conducting that matter than were 
adopted. The undoubted result was apparent. The truth, of course, is that the New 
Haven Railroad under that administration was spending money recklessly, incm*ring 
liabilities recklessly, and doing various things which were most unfortunate for the 
property. There is no question that Mr. Brandeis called the attention of the public 
to those facts: but for some reason or other 1 think they did not make the impression 
on the public that they would have made if they had come from another source. 

Senator Walsh. But his communications through the public press at that time did 
direct the public mind to what afterwards was disclosed to be a rather questionable 
system of operation in finance? 

Mr. Storey. I have no doubt that is correct. (Hearings, 270-271.) 

Senator Walsh. I judge from what you say that people associated with that organi¬ 
zation exercise a very powerful influence, socially, politically, and financially, in 
your community? 

Mr. Storey. They did, certainly at one time. (Hearings, 272.) 

Mr. Hutchins being on the stand, the following colloquy took 
place: 

Mr. Anderson. Mr. Hutchins, I should like to ask you a few questions. Mr. 
Joseph B. Warner was chairman of the Commission of Commerce and Industry, if I 
have the name correctly, which wrote a report about 1908 which was quite a factor 
in the New Haven fight, was it not? 

Mr. Hutchins. I think so; yes. 

Mr. Anderson. And there was a pretty sharp controversy at that time relative to 
the statistics and figures which Mr. Warner and Mr. Charles F. Adams, jr.—I have 
forgotten the other members of the commission—had accepted and published as accu¬ 
rate, and what Mr. Brandeis alleged were th^ actual facts? 

Mr. Hutchins. Yes. - 

Mr. Anderson. And the subsequent history of the New Haven tended, at least," 
in the minds of a great many, to show that those gentlemen were led into grave error. 
Is not that so? 

Mr. Hutchins. I really can not speak of the merits of that controversy; that is, I 
mean as to the report of the commission, etc. 

Mr. Anderson. You did not go into that in any detail? 

Mr. Hutchins. I did not go into that. 

Mr. Anderson. But there was a good deal of bad blood engendered in and about 
Boston in that New Haven fight, was there not? 

Mr. Hutchins. Yes; a good deal. 

Mr. Anderson. A lot of people maintained for years that there was noting but a 
wicked drive being made on the New Haven, and that everybody who criticized the 
New Haven was a destroyer of properties and values, and the facts as they later 
appeared did not justify that criticism. \Iid they? 


42 


NOMINATION OF LOUIS D. BRANDEIS. 


Mr. Hutchins. 1 do not know about the justification of the criticisms, but there 
was certainly a great deal of sentiment of the kind that you express in your question. 

Mr. Anderson. Assuming that the Interstate Commerce Commission investigation 
developed something approaching the truth, the atmosphere against Mr. Brandeis 
in 1908 and 1909 was an atmosphere of harsh and unwarranted criticism, was it not? 

Mr. Hutchins. The criticism was harsh. Whether it was unwarranted or not I 
do not feel competent to judge. 

It is quite proper to say here that no one save one Barron, a news¬ 
paper publisher, shown to have acted as publicity agent for the New 
Haven road in the course of the long struggle being outlined, ventured 
to question the purity of the motives which actuated Mr. Brandeis 
therein, however the soundness of his judgment as to the methods 
he pursued or the conclusions he drew might be questioned. No one 
has suggested that he had any private interest to subserve, and he 
received no compensation from any source. 

One circumstance in this connection would not be mentioned but 
that it helps to a correct resolution of his conduct in the Lennox case, 
hereafter to be noticed. 

Those who think of him as grasping and avaricious, if there are 
any such, may find one hue in his acts in that case; those who believe 
him a man of high ideals or as not afflicted with an inordinate love of 
money may give them quite a different color. Not only was he paid 
nothing for the herculean labors he performed in the New Haven 
fight, involving him in a torrent of abuse and villification, but he 
declined employment by parties holding Boston & Maine securities 
in a large amount who, like him, were opposing the merger, preferring, 
as the subject was one of public concern, to be untrammeled. And 
then, because he had deprived his firm of a lucrative engagement, 
he paid into it $25,000, a sacrifice that was not so great as it might 
seem to some in view of the volume of business the firm was doing 
and the fees it was accustomed to receive. (Hearings, 991, 995.) 

Seven members participated in its earnings and it employed a 
house full of clerks, stenographers, accountants, and other like sub¬ 
ordinates. The record discloses another instance in which he pur¬ 
sued, in substance, the same course. 

Just how far the animosities engendered by the New Haven fight, 
considering the infinite ramifications of its interests and of those 
vitally concerned in effecting its purposes and in concealing the un¬ 
stable character of its finances, may have influenced the minds of 
those about Boston who protest against this appointment is a matter 
of speculation. Doubtless most of the wealth and culture of the com¬ 
munity were arrayed on its side. 

Wliile it stands out most prominently in the public mind because 
of the vast interests involved and the standing in the financial world 
of the chief figures in it, the New Haven fight was not singular. 
Perhaps less is known yet much has been told of his warfare on the 
United Shoe Machinery Co., a corporation with a capital stock of 
$25,000,000, with headquarters at Boston. When in 1910, four 
years after he ceased to be a director of that company, it was about 
to acquire control of the Thomas G. Plant Co., then threatening to 
become a formidable rival, he declared that the penitentiary would 
yawn for any one concerned in the consolidation. Indictments 
were found against the officers of that company, the Department of 
Justice being satisfied that there was sufficient foundation for a prose- 


NOMINATION OF LOUIS D. BRANDEIS. 


43 


cution, though the indictments were afterwards quashed. A deep- 
seated hatred was aroused against him on account of his criticisms 
of that company that is still virulent, and not the less so that Con¬ 
gress, by the agitation, was moved to insert provisions in the Clayton 
law and the Trade Commission law which it is hoped may correct 
some of the evils most intimately associated in the public mind with 
the operations of that comp an v. 

The Consolidated Gas Co. oi Boston, whose career is not as sweet 
smelling as might be wished, found Brandeis a serious obstacle in the 
way of getting everything it wanted from the Massachusetts Legis¬ 
lature. It was the central figure in another protracted fight which 
has vexed the Boston people. Indeed, the public-service corpora¬ 
tions of that city exhibited such a disposition to lay hands on any¬ 
thing they could secure that the people organized themselves to resist 
their exactions and propensities. The Public Franchise League came 
into existence to protect the public. Brandeis was a prominent mem¬ 
ber of the organization, as was George W. Anderson, afterwards a 
member of the Massachusetts Utilities Commission and at present 
United States district attorney for the district comprising that State. 

It is not without excuse, whatever reason they may have, that 
some Boston people do not like Mr. Brandeis. A number of the 
members of the bar of that city sent a protest against his confirmation, 
reciting that his reputation among the lawyers of that city is that he 
is untrustworthy. One of the signers wrote a letter setting out why 
in his opinion such a view was entertained and giving his own judg¬ 
ment of the merits and demerits of Mr. Brandeis’s character. It is 
so judicial in spirit, so keenly analytic, that I venture here to insert it. 

Boston, Mass., February 24, 1916. 

George W. Anderson, Esq., 

85 Devonshire Street, Boston, Ma^s. 

My Dear Anderson: You have asked me to write you a letter giving my views on 
Mr. Brandeis and on his appointment to the Supreme Court and on the way in which 
that appointment would be viewed by the Boston Bar. I am not seeking to be 
involved in this controversy any further than necessary, but I do not feel that anyone 
asked for such an opinion has a right to refuse. 

First, then, so far as ability goes, there can be no question as to Mr. Brandeis’s pro¬ 
fessional standing. He is universally acknowledged to be one of the ablest men at our 
bar, both in point of legal learning and of effectiveness, and if the question was of 
intellectual ability alone, his appointment would be generally approved. 

There is, however, equally little question that he is not generally popular with the 
bar, and that among a considerable proportion of the lawyers here he has the reputation 
of not being a man with whom it is pleasant to deal in business matters, and one who is 
unscrupulous in regard to his professional conduct. Just how far there is any solid 
foundation for such a reputation it is extremely difficult to say. So far as specific 
charges go, all of any consequence of which I have ever heard have been or will be 
brought to the attention of the committee at Washington, and of those it is unnecessary 
that I should speak, especially as I can add nothing of my personal knowledge. 

The general reputation remains, and it is certainly one which is worthy of con¬ 
sideration, in estimating the fitness of an appointment to the bench. Indeed, I 
think in Jhe existing state of the feeling here that no one can be fairly criticised for 
opposing the appointment. Many of his opponents are my personal friends and 1 
understand and respect their point of view, though I believe they are mistaken. 
At the same time, I believe that the reputation to which I have referred is not founded 
so much on anything that Mr. Brandeis has done as it is on other causes. He is a 
radical and has spent a large part, not only of his public, but of his professional career, 
in attacking established institutions, and this alone would, in my judgement, account 
for a very large part of his unpopularity. It would be difficult, if not impossible for a 
radical to be generally popular with Boston lawyers, or to escape severe adverse criti¬ 
cism of his motives and conduct. Certainly I have never heard of anybody, -^om 
Joseph Story down, who has ever succeeded in doing so. The fact, too, that Mr. 


44 


NOMINATION OF LOUIS D. BRANDEIS. 


Brandeis has been the object of constant attack, and in particular of a very skillful 
and long continued press campaign, engineered on behalf of tbe NewIIa ren manage¬ 
ment by Mr. C. W. Barron, has probably increased the feeling against him, for such 
advertising inevitably produces effect, by mere repetition, upon people who are not 
conscious of its influence. When you add to this that Mr. Brandeis is an outsider, 
successful, and a Jew, you have, I think, sufliciently explained most of the feeling 
against him. 

Undoubtedly he is a merciless antagonist, fighting his cases up to the limit, and 
with great technicality, and taking every advantage which the law allows him, with¬ 
out perhaps always a keen regard for fair play. So fsr as I am aware, nothing more 
than this could be fairly considered as proved against him. On the other hand, there 
is, except among a comparatively small number of people, a general recognition tbat 
Mr. Brandeis has rendered public service to the community of extraordinary value, 
and that in doing so he has been actuated by disinterested motives. He lives with 

f ;reat simplicity, and has throughout his career devoted to unj^aid public work a very 
arge proportion of his time and energy. With the opportunities that have been open 
to him, he could, by following more conservative courses, have been a much richer 
man than he is to-day. I do not think it can fairly be doubted that he deliberately 
chose to serve the public rather than to devote himself entirely to making money, 
nor do I think it can be fairly questioned that in doing this he was actuated by high 
motives. 

Throughout his career he has shown unusual interest in and sympathy for those 
classes in the community upon whom economic conditions bear hardly, and has 
devoted a large part of his time and energy to measures which he believed would 
help them. The work which he has done along these lines has been sanely planned 
and carefully worked out, and he has acquired in doing it an unusual grasp of those 
social and economic conditions which underlie many of the most important ques¬ 
tions with which the Supreme Court will have to deal. I believe he will bring to 
the consideration of these problems not only great legal acumen and deep sympathetic 
insight, but a power of careful analysis and an ability to see facts and law in their 
larger relations, which will make him a great judge. Once on the bench the things 
which have injuriously affected his standing at the bar will cease to be important 
and his strong qualities,_ his great ability, his knowledge not only of law but of eco¬ 
nomics and social conditions, and his capacity for taking a broad judicial view of 
any questions to which he applies his mind, will be of inestimable value. 

Of his fundamental honesty of purpose, and his deep moral enthusiasm, I feel abso¬ 
lutely sure. His qualifications for the position of Supreme Court Judge far outweigh, 
in my judgment, anything which can fairly be urged against him. Phr these reasons 
I sincerely hope his nomination will be confirmed. 

I ought, perhaps, to add that I have never had any legal or other business either 
with Mr. Brandeis or against him, and have no reason to expect that I ever will have 
such business. I have known him for ipany years, but never intimately, and I 
entirely disagree with his political opinions. My knowledge of him is simply that 
which I have gained in 20 years’ practice at the same bar. I have no reason to desire 
his appointment, except the interest which every citizen, and particularly every 
lawyer, has, to wish that the best possible man should be selected. It is only because 
I know no one in this community whom I consider so well fitted for the position that 
I hope he will be confirmed. 

Yours, sincerely. 


(Hearings, 619, 620.) 


Arthur D. Hill. 


In the light afforded by what has been said, I proceed to consider 
the several matters in connection with which the nominee is said to 
have shown himself unworthy of the high honor with which the 
President desires to invest him. I pass directly to the two apparently 
deemed most grave—the Lennox case and the Warren case. Astonish¬ 
ing as it may seem, the leading counsel in both of these cases, repre¬ 
senting the parties whose cause Brandeis is charged with abandonmg, 
completely exonerates him from any misconduct worse than an error 
of judgment. In respect to the Lennox case, Mr. Sherman L. 
Whipple, who, as the attorney for James T. Lennox, developed in 
certain proceedings in bankruptcy the exact facts touching the rela¬ 
tions which Mr. Brandeis had sustained to his client (the stenograpMc 


NOMINATION OF LOUIS D. BEANDEIS. 


45 


notes of the interviews out of which the alleged employment rose 
having been read), asserted that in his opinion Brandeis acted from 
most honorable motives and with a high ideal of the duty of a lawyer 
in the premises. Later his exact language will be quoted. 

THE LENNOX CASE. 

The business of the firm of Lennox & Co., tanners, had been devel¬ 
oped by Patrick Lennox, who, at the time of the occurrences to be 
narrated, was nearly or quite 80 years of age. For 10 years his son 
James T. Lennox, the other member of the firm, had managed the 
business. Its transactions amounted to about $1,000,000 a year. The 
firm property and private assets of the partners exceeded that sum. 
In the panicky season of 1907 the firm became embarrassed, and a 
creditor, one Stein, was called to Boston from New York by James 
T. Lennox. With his lawyer, one Stroock, he met Lennox, who, in 
detaihng his situation, disclosed that if not actually insolvent he was 
dangerously near being so. Stroock suggested that he, Lennox, ought 
to consult a lawyer, and, mentioning Brandeis, Lennox assented. The 
three waited on Brandeis, under whose questioning, which was ex¬ 
haustive, going in detail into assets and liabihties, the condition re¬ 
ferred to was more clearly exhibited. Stein was friendly. Another 
creditor participated to some extent in the conferences and it was 
determined that a general assignment without preferences should be 
made and that Brandeis should try to work out some general agree¬ 
ment among the creditors—for an extension or a composition, as the 
progress of negotiations might suggest. This was done, one of Bran- 
deis’s partners, George P. Nutter, being named as assignee. It was 
canvassed in the course of the conference whether Brandeis should 
become attorney for Stein or for Lennox, but it was agreed eventually 
that the plan could be worked out most effectively if Brandeis did not 
represent Stein or any other creditor and that he would represent 
Mr. Lennox in the manner stated. Stroock having asked Brandeis 
whether, in view of relations which his firm had sustained to a cred¬ 
itor, Weil, Farrel & Co., he could act for Lennox, the latter said: 

Yes; I think I could. The position I should take if I remained in the case for 
Lennox would be to give everybody, to the best of my ability, a square deal. (Hear¬ 
ings, 792.) 

And he continued: 

I should, if I acted for Mr. Lennox, see that he got his legal rights; no more, no less. 
(Hearings, 793.) 

Again, he said: 

I should feel if I were acting for Mr. Lennox as trustee that it was the duty of the 
trustee to see that everybody got his legal rights as nearly as we could make it. (Id.) 

And then Lennox, referring to some comment by Stroock, re¬ 
marked: 

You are speaking now of Mr. Brandeis acting as my counsel? 

Whereupon Brandeis interjected: 

Not altogether as your counsel, but as trustee of your property. (Hearings, 795.) 

It is plain from the foregoing that Brandeis proposed (whatever 
may have been the understanding of Lennox) that tne latter and his 
father should turn over to him, Brandeis, all their property, he to 


46 


NOMINATION OF LOUIS D. BRANDEIS. 


deal with the situation with justice to everybody and in the hope of 
making an adjustment that would be satisfactory to all concerned, 
or, in the event that such a solution could not be reached, to apply 
the assets to the liquidation of the indebtedness. 

The assignment was made in pursuance of that plan, and Brandeis 
immediately got into communication with the other creditors with a 
view to carrymg it out. When the assignee went to take possession 
under the assignment, he learned, through accountants who had been 
directed to examine the books, that James T. Lennox had but recently 
cashed checks to the amount of $10,000, the avails of which did not 
appear. Inquiry revealed that he had the cash in his possession. On 
being questioned in the present hearing, he stated that he needed 
the money. The assignee required him to surrender it, which he did, 
though reluctantly. A short time after a controversy arose between 
him and the assignee concerning the compensation he was to receive 
for assistance which he was rendering pursuant to request in attempt¬ 
ing to straighten out the tangled affair—the books being fragmentary 
and the business having been run without much system. He de¬ 
manded $500 a week; the assignee refused to allow him more than 
$100. Meanwhile, on September 10, the assignment having been made 
on the 5th and recorded on the 9th, one J. r. Leahy, of Lynn, where 
the Lennoxes lived, called upon Mr. Nutter, representing, as his 
counsel, Patrick Lennox. He conferred with Nutter and forwarded 
his work for some time, but toward the close of October Patrick 
Lennox, through Leahy, set up the claim that he was not a member 
of the firm of Lennox & Co. and that he had never signed the instru¬ 
ment making Nutter assignee or that his signature had been obtained 
fraudulently or without full understanding of its purport. When 
Nutter refused to hire James T. Lennox at $500 a week he ceased to 
assist actively in carrying out the trust, and much difficulty was 
encountered on account of his indifference or apathy and the claims 
of the elder Lennox referred to. Meanwhile the creditor, Weil, 
Parrel & Co., was threatening to proceed criminally against James T. 
Lennox on an alleged fraudulent statement of his financial condition 
and sought to employ the Brandeis firm to conduct the prosecution, 
but they declined. An indictment was afterwards returned. The 
execution of the trust with which Brandeis had charged himself 
through the assignment proving impracticable, on account of the 
attitude of the Lennoxes, it was resolved to see it carried out through 
bankruptcy proceedings, to which various creditors had recourse. 
Several petitions were filed, one by the Brandeis firm. An adjudica¬ 
tion went, the court holding that the assignment was duly made and 
constituted an act of bankruptcy. In the original conference it had 
been mentioned that it was such and would require an adjudication 
if asked, but the hope was expressed that the creditors would assent 
to the assignment. (Hearings, 788.) 

The thing worked out as was originally contemplated. A composi¬ 
tion was effected under which the individual debts of the partners 
were paid in full and the firm creditors got 40 cents on the dollar. 
There is no doubt that the making of the assignment, though an act 
of bankruptcy, was the wise course to pursue under the circumstances. 
None of the parties involved are making any complaint. Leahy 
weiS not called to express any complaint on behalf of the elder Lennox 


NOMINATION OF LOUIS D. BRANDEIS. 


47 


and it will be borne in noind that an organization of protestants was 
represented at the hearing by counsel who undertook to present to the 
committee the names of any witn^ses his clients deemed it advisable 
to call. James T. Lennox came in response to a subpoena, but was 
excused on his request on saying that he could add nothing to what 
had been said by Mr. Stroock and Mr. Whipple. He was later called,, 
at the instance of a member of the committee, but he showed no 
hostihty to ^Ir. Brandeis. Whipple was employed to resist the 
bankruptcy proceedings. He is the head of a leading firm of Boston 
lawyers, said vdthout dispute to be one of the ablest trial lawyers in 
New England, an enviable reputation which those who heard him 
testify will agree he doubtless fully merits. When the story was told 
him of how the Lennoxes employed Brandeis in their troubles only 
to find that his firm had filed a petition in bankruptcy against them, 
he did the manly and fraternal thing. He called on Brandeis. 
Let him tell the story of the interview. Introducing the subject 
which gave rise to his call he said: 

They say that you advised an assignment to your partner, Mr. Nutter, and took all 
of Mr. Lennox’s property, and that you now claim that you are not and never have 
been his counsel, and I thought, Mr. Brandeis, it would be better for me to come 
right to you and talk over a situation which seemed to me to be serious, because if 
you did agree with the Lennoxes that you would act as their counsel, and now are 
acting in a position hostile to tnem, through this assignment, you will agree with me 
that a rather serious situation is presented. (P. 287.) 

The witness continues: 

He said, “Of course it would be,” or he said, in substance, “Of course, that would 
be a serious situation, but it is not the situation at all; I did not agree to act for Mr. 
Lennox when he came to me. When a man is bankrupt and can not pay his debts, 
Mr. Whipple, he is a trustee for his creditors; he has no individual interest; he finds 
himself with a tmst, imposed upon him by law, to see that all his property is distributed 
honestly and fairly and equitably among all his creditors, and he has no further inter¬ 
est in the matter. Such was Mr. Lennox’s situation when he came to me, and he con¬ 
sulted me merely as the trustee for his creditors, as to how best to discharge that trust, 
and I advised him in that way. I did not intend to act personally for Mr. Lennox, 
nor did I agree to.” “Yes,” I said, “but you advised him to make the assignment. 
For whom were you counsel when you advised him to do that, if not for the Lennoxes? ” 
He said, “I should say that I was counsel for the situation.” I said, “Yes; but you 
advised an assignment of all his property, so that your firm became possessed of it, 
because Mr. Nutter was your partner.” He said, “Yes; and I knew no one better in 
the city of Boston than my partner, Mr. Nutter, to execute such a trust as that. He 
stands high; he has everybody’s confidence, and that is why I advised it.” I said, 
“I must say, Mr. Brandeis, it looks to me very much, according to your principles, 
as if when a man was bankrupt and went to a lawyer, and the lawyer advises him to 
make an assignment for the benefit of his creditors, he assigns his lawyer with it, very 
much in the way a covenant runs with land.” He said, “Mr. Whipple, I think that 
is a very unkind and very ungenerous statement for you to make. It impugns my 
motives, and I can only assure you that I had no such motive in doing it. ^ I was merely 
occupying myself with seeing that this property, which was brought into my office 
in this way, was equitably and fairly distributed among the creditors, and I was look¬ 
ing after the interests of everyone; I was looking after any interest that Mr. Lennox 
had, if any, if anything should be left after the settlement with his creditors, but, in 
the first place, looking after the interests of the creditors.” (Hearings, pp. 287-288.) 

The impressions Mr. Whipple took away are expressed by him as 
follows: 

Mr. Whipple. You see, my belief was, at the time, that there was a misunderstand¬ 
ing. My belief was at the time, and is now, that Mr. Brandeis was misunderstood. 
That is, I preferred then, and prefer now, not on account of any personal friendship or 
feeling, but my view was that there was a misunderstanding. I think Mr. Brandeis 
was so much absorbed in the question of caring for the situation, and so much interested 
in the development of his ideas as to how this estate should be administered, that he 


48 


NOMINATION OF LOUIS D. BRANDEIS. 


unconsciously overlooked the more human aspect of it, which would perhaps have 
appeared to another; but here was a man confronted with perplexities and charges 
and troubles, who wanted his personal and individual care and attention. But I 
think Mr. Brandeis looked upon it as a problem of distribution. 

He did not view Mr. Lennox, with his difficulties and troubles and desires, in quite 
the human way that certainly some lawyers would. He took a broader view, as it 
seemed to me, that he was charged with the duty and responsibility, not merely of 
looking to Mr. Lennox or to Mr. Lennox alone, but that he owed a larger and broader 
duty to all the interests involved. Now, I felt then, and I feel now, that that was a 
mistake, but it does not mean, to my mind, that Mr. Brandeis was culpable; that he 
deserted a client; that he neglected a duty to a client, because, as it seemed to me—and 
I will say it frankly—at first he was going with the property and had a more lucrative 

i ‘ob. I was convinced from my talk with Mr. Brandeis and from my knowledge of 
lis character, that the mercenary motive did not exist; that the thought of deserting 
Mr. Lennox’s case and interest did. not enter his head. I thought then, and I think 
now, that he made a mistake in this, at least, that he did not make it clear, so that a 
layman would understand just what he was talking about. When a lawyer talks to a 
business man about being charged with the responsibility of an equitable division of 
the estate among all who may be interested, such talk, I think, goes right over the 
head of the ordinary business man who does not understand clearly the fiduciary 
duties of a man in that position, and who does not understand the clear and fine 
definition of the fiduciary duty in its different aspects. 

To this he added: 

I was convinced of his sincerity, his devotion to a thought, and an idea with regard 
to the administration of this estate, which was credible—credible because it is true 
that a man when he is a bankrupt is the trustee for his creditors, and he has no right 
to try to keep money from his creditors or to prevent an equitable and fair distribution 
or to prefer them. That is true. It is a high and proper ideal of practice. A lawyer 
who IS charged with the duty of advising under those circumstances has a duty not 
only to the debtor who comes to him but to every creditor, and he must and ought to 
be scrupulous in his discharge of it. But, of course, his scrupulous discharge of that 
duty to all the others must not permit him to neglect his duty to the one who needs 
his help the most. (Hearings, 300-301.) 

These observations prompt me to inquire what a man wants 
with an attorney anyway after he has made a general assignment 
for the benefit of his creditors? All his property is gone and there 
is nothing an attorney can do except to see that the trust is managed 
to the best possible advantage, so that the property will go as far 
as may be to discharge the claims of creditors or possibly satisfy 
them in full, leaving a residue which becomes his again. The best 
thing a lawyer can do for him, the only thing he can do, is to become 
attorney for his assignee and aid him in administering the trust. 
There can be no diversity of interest so long as the assignor purposes 
and seeks to have the trust carried out. He needs no lawyer except the 
attorney for the assignee. It is the universal practice, accordingly, 
for the attorney who draws the deed of assignment to become counsel 
to the assignee. Lennox must have known—it was impossible that 
he could fail to know—that the Brandeis firm would become the 
attorneys for Nutter, the assignee. He could not by any- possibility 
have imagined that in a contest of any character arising between 
him and the assignee Mr. Brandeis or the Brandeis firm was going 
to counsel him, except as both he and Nutter were counseled; or that 
if, perchance, any difference between him and the assignee found its 
way into court, Brandeis or his firm was to represent him as against 
the assignee, Nutter. He never paid the Brandeis firm anything 
and no charge was ever made against him. Wlien he put himself 
in an attitude of hostility to Nutter he knew that he could not 
count on Mr. Brandeis as his personal legal representative. It is an 
embarrassment to a lawyer who has drawn an assignment and 


NOMINATION OF LOUIS D. BRANDEIS. 


49 


become attorney for the assignee to make a choice should a dis¬ 
agreement unhappily arise between him and the assignor. He 
could, perhaps, not be blamed whichever way he determined lay 
his duty. But as Mr. Brandeis’s partner was the assignee there 
was no choice open to him. Nor was there, apparently, any choice 
open to the assignee, when it became evident to creditors that the 
trust was not being carried out and could not be carried out in 
view of the hostile claims being made, but to resort to the bankruptcy 
court or watch the assets pass out of his control through proceedings 
in that court instituted by creditors who would not sit idly by while 
the assignors were perhaps getting away with the property. Mr. 
Brandeis apparently resolved that an olDligation rested upon him 
to carry out the trust in the only way open to do so. Some may 
differ with him as to what ought to be done in a case so rare, but 
no one who does not view the proceedings with a jaundiced eye can 
doubt that he acted conscientiously in the course which was taken. 

THE WARREN CASE. 

On leaving college' Brandeis formed a partnership with a classmate, 
one S. D. Warren, the son of a successful paper manufacturer, S. D. 
Warren, sr. After the youths had been in business in Boston under 
the firm name of Warren & Brandeis for about 10 years the elder 
Warren died, about 1888, leaving three other sons, Edward, Henry, 
and Fiske, a daughter, Cornelia, and a widow, their mother. The 
children, of whom S. D. was the eldest, had aU reached their majority. 
The law firm had so successfully estalDlished itself by that time that 
Warren was drawing out ot the business about $10,000 a year. The 
property which had enriched the family was left by the will of Warren, 
sr., to his widow and children. Warren & Brandeis became the 
attorneys for the executois. It was the desire of aU that the busi¬ 
ness be kept m the family, and yet Edward was in Europe most of the 
time, devoted to antiquarian research and the collection of antiqui¬ 
ties; Henry was a student in feeble health, who died not many 
years after; Fiske was a youth without much experience. The 
ladies were cultured, but their capabilities in a business way had not 
been put to the test. It was in mind that those who undertook to 
run the business should assume the risk and that the other members 
of the family should be relieved of personal responsibility. It was 
planned that the property should be conveyed to trustees, and these 
trustees should lease the property to those who undertook to manage 
it. One Mason, a relative, had long been associated with the elder 
Warren in the business. He, S. D. Warren, and Fiske Warren took 
it over, the old firm name continuing. The mffl property was con¬ 
veyed to trustees, Mi-s. Warren, S. 1). Warren, and Mr. Mason, the 
deed reciting the trusts and authorizing the trustees to lease to a 
firm ot which any of the trustees might be members. It was then 
leased to the new firm, which agreed to pay to the trustees 6 per 
cent on a valuation placed upon it and one-half the profits. The 
movable property appurtenant to the mills was taken over by the 
firm and the value of the respective shares credited on its books 
to each beneficiary. Substantially, the firm bought this property 


Ex. Kept. 2, pt. 1, 64-1-4 



50 


NOMINATION OF LOUIS D. BEANDEIS. 


and became indebted for it. S. D. Warren, who had ^iven some, 
attention to the business during the later years of his father’s life 
severed his relations with the law firm, and thereafter devoted 
himself to the paper business, though the firm name of Warren & 
Brandeis was carried for a number of years thereafter. 

The firm of which Mr. Brandeis was the head after the retirement 
of S. D. Warren became attorneys for the trustees and for the firm 
of S. D. Warren & Co., their fees being paid in part by each, respec¬ 
tively. Edward Warren was abroad when the instruments mentioned 
were prepared and the deeds had to be sent there to him for execu¬ 
tion. With the letter went a list of the accompanying instruments, 
as follows: 


1. Deed of Cumberland mills and other property, from the residuary devisees under 
father’s will to John E. Warren. 

2. Deed of Copsecook mill, same to same. The property covered by both these 
deeds will be conveyed by deed of even date to the trustees named in— 

3. Declaration of trust by Susan C. Warren, Samuel D. Warren, and Mortimer B, 
Mason, of which I send you a copy. 

4. Deed of Forest Paper Co. property to Louis D. Brandeis. This will be conveyed 
by him at once to the purchasers of the property, Mortimer B. Mason and Samuef D, 
Warren. 

5. Bill of sale, residuary legatees, to new firm of S. D. Warren & Co. 

6. Brief explanation of proposals, showing the reasons for the various transfers. 
(Hearings, 843.) 

The letter, after giving directions concerning execution of the in¬ 
struments, continued: 


I do not send you at the moment detailed figures of the condition of the estate, 
such I have submitted to the other children, for Wo reasons, first, because I do not 
like to have them go out of my possession and run any chance of going astray, and, 
secondly, because I have found so much explanation necessary to their comprehen¬ 
sion by the other children that I do not think you would understand them without 
explanation. All the others have been carefully into the matter and approve of the 
proposed arrangement; and I shall have to ask you to take my word for it so far as 
you do not understand it. When you return in the fall, I will go into all details to 
your satisfaction. 

The upshot of the whole matter is that the Forest Paper Co. is sold to Mortimer 
and myself at what I think is a fair price for the one-half interest of the estate (viz, 
$90,000), the other half being owned by George W. Hammond. The assets of the 
old firm of S. D. Warren & Co. are sold to the new firm at a fair valuation. The Cum¬ 
berland and Copsecook mills and other real property in Maine are conveyed to the 
trustees for 33 years to be dealt with for the benefit of the residuary devisees in the 
proportions in which they are interested under the will. For the present the rental 
allowed to the firm of S. D. Warren & Co. for the use of these mills will be C per cent 
per annum on the value of the plants at any time plus 50 per cent of the net profits 
of these mills. This I think an extremely favorable arrangement for the devisees. 

I should add, lest you get an inflated idea of your income, that the profits of last 
year (in which you had a larger interest than those of this) were larger by a consid¬ 
erable sum than they will be this year, or than they ever were before; 1888 was the 
high-water mark in profits. 

Please execute these papers as soon as convenient and return them immediately 
on execution, care S. D. Warren & Co., 220 Devonshire Street, in a waterproof envelope 
clearly addressed. 

Your affectionate brother, 


Samuel D. Warren. 


(Hearings, 844.) 


Edward did return in the fall, and came to this country at in¬ 
tervals thereafter. The liveliest affection had always, until dif¬ 
ferences unhappily afterwards arose, obtained among the various 


NOMINATION OF LOUIS D. BEANDEI8. 


51 


members of the family. Even on the eve of starting suit against 
his brother S. D., in the year 1909, Edward wrote him as follows: 


My Dear Sam: I have had to file the bill, because otherwise it would have been 
difficult to obtain a satisfactory before Monday next, but— 

First. I hope that you will make me contented to withdraw it; and 
Second. The phrases are such as in a legal document I have felt obliged to sign, 
but are very far from representing my feelings toward you aside from the business 
or my desire for unanimous fraternal procedure. 

Let us try to agree; it would be much pleasanter. 

Your affectionate brother, 


E. P. Warren. 


Bellevue Hotel, Boston, 

December IS, 1909. 


(Hearings, p. 860.) 


Annual statements were sent to all the beneficiaries and remit¬ 
tances or settlements made. In 1902, after the plan had worked 
without friction for 13 years, Edward exhibited some dissatisfaction. 
He employed a lawyer, one William Youngman, who, several years 
thereafter, brought a suit for Edward, asking that his brother S. D. 
be removed as trustee, for a decree annulling the lease, and for an 
accounting. Issue was joined. S. D. Warren was examined at length 
before a master, the examination being conducted by Sherman L. 
Whipple, heretofore referred to. S. D. Warren died before his exami¬ 
nation was completed, and a settlement of the litigation was effected, 
under which the interest of Edward Warren was acquired. Mr. 
Moorfield Storey was employed by Fiske Warren and represented 
him in the litigation. Mr. Storey appeared before the committee 
as a protesting witness. He signed, a remonstrance as an ex-president 
of the American Bar Association, appearing in the record. He ap¬ 
peared to tell that Brandeis had been em^uoyed to wreck the New 
England Railroad, to be hereafter referred to, and that the reputa¬ 
tion he bore at the bar of Boston was not good. Asked about the 
Warren case, he said: 

Mr. Storey. The position is this: When Mr. Samuel D. Warren, sr., was alive, he 
owned the mills and was the controlling partner in the firm. The firm sold the goods, 
and there was some arrangement between the firm and Mr. Mason, personally, for a 
division of the expenses and profits. When he died that situation existed and some¬ 
thing had to be done in order to carry on the business, and an arrangement was made 
whereby the property formerly held by Mr. Warren, personally, was vested in trus¬ 
tees, and Mr. Samuel Warren took his father’s place in the firm, and Mr. Fiske Warren 
was also in the firm, but with a smaller interest. Mr. Edward Warren was in Europe 
engaged in the study of arts and curiosities, and was not in active business. 

The arrangement which was made seemed to me, as I examined it, a perfectly fair 
arrangement. It probably, in view of what happened afterwards, would have been 
better if Mr. Edward Warren had independent advisers to counsel him. But the 
thing was submitted to him and agreed to by him, and I saw nothing in the arrange¬ 
ment as to which he could complain. I sat through the trial which had begun, and 
Mr. Warren was on the stand, as I remember, about six weeks, and during that time was 
cross-examined by Mr. Whipple. There were about six weeks more, as I understand 
it. It looked as if the cross-examination might last longer, when Mr. Warren died. 
During the cross-examination nothing developed which reflected upon Mr. Samuel 
D. Warren in any way, or upon Mr. Brandeis. 

As 1 say, I saw nothing in the case up to the time the case ended of which Mr. 
Warren could be in any way ashamed. It seemed to me he had treated his brother 
with great fairness. I should have done perhaps very much as Mr. Brandeis did if 
I had been in his place. It would have been a matter of caution, however, to have 
independent counsel, but apparently the family united- 

Mr. Anderson. Was there any more reason for suggesting independent counsel for 
Mr. Edward D. Warren than Mrs. Warren—I mean at the outset? 


52 


NOMINATION OF LOUIS D. BEANDEIS. 


Mr. Storey. I do not know that there was. 

Mr. Anderson. Was there any more reason for suggesting separate counsel for 
Edward Warren than for Fiske Warren? 

^Ir. Storey. They were all of age, and Fiske Warren, up to that time, had not been 
very active as a business man, any more than Edward Warren, but he was on the 
ground and was in a position to employ counsel. Mr. Edward Warren was on the 
other side of the water. At the time, as I say, there was nothing in the relations 
between the different members of the family to suggest that there was any divergence 
of interests, or any reason why they should not act harmoniously, as they did. (Hear¬ 
ings, 277, 278, 279.) 

Perhaps that is all that need he said about the Warren case. 

If Mr. Storey, with his opportunity to know the facts, and he was 
obliged to investigate them in order properly to advise his client, 
found nothing to criticize, the quest is not likely to yield much. 

Mr. Holhs Bailey was associated with Youngman in the litigation. 
He is likewise an adverse witness. 

The following indicates his view of Brandeis’s wrongdoing: 

Senator Walsh. So far as the Brandeis firm are concerned and Mr. Brandeis’s con¬ 
nection with it, as I understand you, the complaint which you make against him is 
that this firm acted during this period at one and the same time for the lessors and for 
the lessees in these arrangements? 

Mr. Bailey. Yes; and that should rightly have suggested to him, when there were 
conflicting interests, that independent counsel would have been quite proper to act. 

Senator Walsh. The point you make is that it was the duty of the Brandeis firm to 
have suggested to your client, as soon as differences arose, that he should get inde¬ 
pendent counsel? 

Mr. Bailey. Independent advice. (Hearings, 149.) 

I think, further, that if l^lr. Brandeis had properly considered the rights and in¬ 
terests of Mr. Edward Warren he would have said to him, “Your brother, Samuel, 
while he is trustee, is getting these very large sums for carrying on the business un¬ 
der the lease.” 

Senator Walsh. That is to say, that when the lease was made originally you think 
Mr. Brandeis should have advised Edward that he ought not to consent to that lease 
or enter into it because his brother, Samuel, was getting a better bargain than he ought 
to get? 

Mr. BAmEY. Not to do it, in any event, without having the advice of independent 
counsel. Those are the main points. (Hearings, 150.) 

But why should Brandeis advise Edward Warren that he ought to 
get independent counsel? Would not such a suggestion from him 
be an affront, and a perfectly gratuitous affront, to S. D. Warren, 
who might be presumed by any one knowing him and particularly by 
his law partner to give his brother such information as the conditions 
might seem to require ? Edward was at the time 30 years of age—a 
graduate of Oxford. If Brandeis ought to have advised him to em¬ 
ploy an independent lawyer certainly he owed the same duty to Mrs. 
Warren and to Cornelia and to Fiske and to Henry. It would be an 
absurdity as a business proposition to bring into a family settlement 
of that character a lawyer for every member or even one representing 
each diverse interest and there were at least three. 

As to advising Edward when differences arose to get another 
lawyer, he forthwith employed Youngman and it was unnecessary 
to give him any advice on that point. 

But it was suggested at the hearing, perh^s by a member of the 
committee, that when suit was begun against S. D. Warren, the Bran¬ 
deis firm ought not to have acted for him because it had been attorney 
for Edward Warren in the transactions under investigation in that 
it had been attorney for the trustees to whom he stood in the relation 
of cestui que trust. That is a startling doctrine. Certainly Edward 
Warren had disclosed nothing to the firm, confidential or otherwise, 


NOMINATION OF LOUIS D. BEANDEIS. 


58 


which could be used against him. The firm had learned nothing and 
could have learned nothing that each beneficiary was not entitled 
equally to know. Can it be that when the title of the trustee or his 
administration of the trust is attacked by one of the beneficiaries the 
attorney for the trustee can not represent him because, forsooth, 
the former has been drawing pay out of funds which belong equitably 
in part to the suing cestui^ Is an attorney for a corporation pre¬ 
cluded from defending its directors when assailed in court for malad¬ 
ministration ? Is the attorney for an executor or administrator? 
The suggestion must have been made unreflectingly. 

The suit was founded upon the supposition that the lease feU 
within that class of contracts which equitv avoids, not because of 
anv fraudulent purpose but because of a public pohcy springing from 
a desire to remove the temptation to defraud. 

Here is what Mr. Whipple has to say of this affair: 

The question was then whether all parties who were involved—all the beneficiaries— 
Knew it and assented to it, fully advised and with their eyes open, and it was con¬ 
tended in behalf of Mr. Edward Warren, who was at the time abroad and whose informa¬ 
tion all came by correspondence, that he intrusted the whole matter to Mr. Brandeis 
and was not fully informed, so that that was the ground of the position which we took 
in the litigation and with reference to which my cross-examination of Mr. Samuel D. 
WarrenproceededjbutMr. Bailey, as I noticed by the public press, stated, in response 
to a question by one member of the committee, that he believed that Mr. Brandeis 
intentionally framed this lease and other papers so as to give Mr. Warren this oppor¬ 
tunity to make private profit. That belief I do not share with Mr. Bailey. I cross- 
examined Mr. Warren at length, and I was then impressed, and so expressed myself, 
that the idea of defrauding his brother or the other members of his family, or securing 
a personal advantage to which he was not entitled, did not enter his head; that the 
entire transaction was free from any taint of dishonest motives or intentional fraud. 

I had the feeling with regard to Mr. Brandeis somewhat like Mr. Storey has just 
expressed, that he was possibly careless in not making very, very clear to Mr. Edward 
Warren just the whole transaction and its possible effect upon his rights, but I felt at 
the time, and I feel now, that Mr. Brandeis, who has been the family counselor and 
been trusted for many years, thought that there was a perfect understanding and accord 
among all the members of the family; that Mr. Samuel D. Warren, who, by the death 
of his father, became the head of the family, should be charged with the responsibility 
of handling and operating this large property and should have what he could make 
out of it. Of course, if that was so, and all parties assented, there was no violation of 
trust; and there was no moral wrong. Therefore, I reached the conclusion that there 
was a legal wrong; that there was a violation of that principle of law with regard to 
trusts which I have just pointed out, but that there was no reprehensible motive to 
secure a personal advantage secretly or in any way like that. (Hearings, 283-284.) 

Mr. Youngman, referred to, overwhelms Mr. Brandeis with accusa¬ 
tions in connection with this case, but it may be said in charity that 
his employment by Barron to gather up the material for a newspaper 
campaign against Brandeis probably warped his judgment touching 
the acts of that gentleman. 

THE BALLINGER INQUIRY. 

The essential facts in reference to this matter are well known. 
Glavis, a subordinate in the Interior Department, had laid before 
President Taft charges affecting the administration of that depart¬ 
ment under Secretary Ballinger and had been dismissed from the 
service. It was claimed among other things, that by a laxity or 
hberahty in the practice of the department, the Secretary was per¬ 
mitting the coal lands of Alaska to be fraudulently appropriated. 
Comphcity in the general purpose or at least, toleration of it, was 


54 


NOMINATION OF LOUIS D. BRANDEIS. 


Tinders1 00 d by many to be impbed. The incident intensified a sus¬ 
picion of the Secretary entertained by the so-called ‘‘conservation¬ 
ists,” headed by Gifford Pinchot, Chief Forester. Colher’s Weekly, 
an advocate of the ideas of the “conservationists,” printed the Glavis 
charges. A congressional investigation into the causes of the removal 
of Glavis was ordered. ColUer’s Weekly employed Brandeis to ap¬ 
pear at the investigation. Upon consideration it was determined 
that he should appear for Glavis, their contributor, and not seek to 
introduce the paper as a party to the proceedings. 

Glavis was presumably quite wilUng to have so able a lawyer as 
Mr. Brandeis. He announced to the committee that he appeared 
for Mr. Glavis, and as his attorney conducted the inquiry. Collier’s 
paid him $25,000 for his services, which extended over a period of 5 
months. He is accused of unprofessional conduct in not announc¬ 
ing to the committee that he was employed and paid by Collier’s. 

It is asserted and not denied, that it was common knowledge at 
the time that he was employed by Collier’s. He never was asked 
who hired him or by whom he was paid. The committee, perhaps, 
thought it quite immaterial. They could scarcely have believed 
that an impecunious Government clerk was feeing one of the first 
lawyers in the country. 

Be that as it mav, were it not for the views of some members of 
the committee, I should unhesitatingly declare the charge absurd. 
It presents the question of whether a lawyer may with propriety 
have his name entered in a cause as attorney fo» a party who pays 
him nothing under employment by another, but with the assent of 
the party he nominally represents. I assert that it is a practice of 
daily occurrence, not only tacitly approved but recognized by the 
courts. Can not a mother employ an attorney to defend her son 
charged with crime? Must he announce in entering his appearance 
who employed him and where he gets or expects to get his pay ? 

The stock association of my State frequently employs a lawyer to 
aid county attorneys in the prosecution of cattle-stealing cases. The 
local prosecutor is usually glad to have his assistance. Is he dis¬ 
qualified for judicial honors if he does not announce to the court that 
the State did not hire him and does not intend to pay him ? I ven¬ 
ture to assert that scarcely a term of the Supreme Court passes 
during which some lawyer does not have his appearance entered on 
the invitation, or by the assent of the counsel already of record, 
being employed by some one not a party to the suit, but who is 
interested in the principle involved. The court would stare at a law¬ 
yer who under such circumstances in beginning his argument, took 
its time to announce that he was not hired and did not expect pay 
from the party for whom he spoke. 

If this IS professional misconduct the bar needs regeneration. 

Another charge in this connection is answered by the undisputed 
evidence of the record. 

THE NEW ENGLAND CASE. 

Barron told the committee that Hon. Moorfield Storey could tell 
that Brandeis had been employed in 1902 to wreck the New England 
Railroad. It was the conclusion of that gentleman that he had been 
so employed. The facts were that Brandeis had been retained by 


NOMINATION OF LOUIS D. BEANDEIS. 


55 


one William Kelly, a reputable lawyer of New York City, now a 
supreme court justice, to bring suits against the directors of the 
New England road, charging misconduct on their part, to restrain 
P^ym^nt of dividends, alleged to be illegal because there were no 
profits from which to pay them, and to restrain the issuance of bonds 
because the bonding power of the corporation had been exhausted. 
A receivership was contemplated and a bill drafted. Separate suits 
were started m the States through which roads comprising the system 
ran. They represented a contest between Austin Corbin, Kelly’s 
client, and the Doard in control of the road. He had been president, 
but had resigned, possibly under pressure. The suits were started 
in the name of Goldsmith, a hquor dealer of Boston, who was a 
stockholder. The season of financial depression was on. After 
carrying on the litigation with success, so far as it progressed, Corbin, 
in 1893, quit and directed Kelly to give no further attention to it on 
his account, advising him that the New Haven, which had meanwhile 
acquired the pr^erty in foreclosure proceedings, would take care of 
the litigation. He insists that Corbin was in no way associated with 
the New Haven at the time the suits were commenced, that Corbin 
indeed was fighting that system, running a rival road. Be that as it 
may, there is not a breath of testimony that Brandeis knew or had 
any reason to suspect that Corbin was acting for the New Haven, if 
he was, nor is it intimated that the suits were without foundation, so 
palpably baseless as to suggest to an ordinary lawyer that they were 
malicious. 

In 1893 the Massachusetts Legislature inquired whether the New 
Haven had not forced the New England into insolvency with a view 
to the monopohzation of transportation facihties. The examination 
was conducted by Mr. Storey. He called Mr. Brandeis and interro¬ 
gated him concerning the suits and his employment. Brandeis quite 
deferentially dechned, in the first place, to tell, claiming the privilege 
and the duty of counsel, but later told, as herein set out, about the 
matter. The litigation had evidently engendered bad blood between 
these two lawyers, as evidenced by the examination referred to. I 
should be loathe to beheve that Mr. Storey carried to this day the 
animosity thus aroused, but the opinion of a man often defies analysis. 

Another protesting ex-president of the American Bar Association, 
Simeon E. Baldwin, was counsel in Connecticut in that htigation for 
the directors of the New England road, which Corbin charged with 
misdeeds of many kinds. This affair narrows down to the question 
of the offense of Brandeis in bringing the suit in the name of Gold¬ 
smith, who was fuUy indemnified by Corbin. Goldsmith afterwards 
sued the Corbin estate to recover on account of expenses incurred in 
the litigation. It was not asserted that the court held that his agree¬ 
ment with Corbin was contrary to public pohcy or good morals. 

It is conceded that whatever right Corbin had to maintain the 
actions. Goldsmith had the same right. The question is akin to that 
presented in the Ballinger case. 

The Supreme Court of the United States held in Wheeler v, Denver 
(229 U. S., 342) that a taxpayer could maintain a suit in the Federal 
court, though it was brou^t by his permission by the attorneys for 
a corporation which could not sue therein, which had indemnified him 
against costs and damages, provided the attorneys, and borne all the 
expenses. 


56 


NOMINATION OF LOUIS D. BEANDEIS. 


A fight was waged in my home city for years between the munici¬ 
pality and a water company. On a number of occasions when action 
was taken by the city which the company thought inimical to its 
rights or interests, and which in its opinion would justify a tax¬ 
payer’s suit, it got some friend, possibly a director of the company, to 
bring suit; that is, started suit in the name of the taxpayer under 
an indemnity to him. The most high-minded lawyers at our bar 
have pursued this course, and it never occurred to me that they 
were subject to disbarment or open to censure for having appeared 
as they did. What harm is done? W^hat evil is to be feared? 
Isn’t it true that the law is no respecter of persons? The “saloon 
keeper” Goldsmith looked to the court quite like the capitalist 
Corbin. It does not appear why Corbin preferred not to have the 
suit brought in his name, but, as in the Ballenger case, it was gen¬ 
erally known that he was back of them. They were referred to as 
“the Corbin suits.” That is immaterial. It was of no consequence 
to the court in the determination of the suits whetlier Goldsmith 
proceeded on his o\vn motion or at the instigation of some one else. 
Neither the facts nor the law could be affected. 


THE ILLINOIS CENTRAL. 

This complaint simmers down to a question of whether Mr. Bran- 
deis dissimulated or prevaricated in a statement made in a letter in 
relation to his being or having been the attorney for E. H. Ilarriman. 
The letter having been read and the facts having been developed by 
testimony, Senator Cummins, a member of the committee, addressed 
the following question to Mr. Fox, who was conducting the case for 
the protestants: 

Senator Cummins. 1 would like to know, before we go further, your view of Mr. 
Brandeis’s statement or letter to Mr. Walker. Wherein do you think it shows false? 
Wherein do you think that it departs in any degree from the truth? (Hearings, 354.) 

To this he got no answer; presumably because Mr. Fox was able 
to give none. Neither am I. 

THE SHOE MACHINERY CO. 

Mr. Winslow, president of the Shoe Machinery Co., heretofore 
referred to, made bitter complaint against Brandeis. Prior to 1899, 
when that company was organized, the latter had been the repre¬ 
sentative—business rather than legal, apparently—of the Henderson 
family, of Chicago, owning interests in one of the companies uniting 
to form the Shoe Machinery Co. Brandeis became one of 19 directors 
in view of the interest referred to and had such part in the work of 
the board as a director not immediately concerned with the man¬ 
agement of the business ordinarily has, being one of 19. 

Perhaps more, because his business capacity is perhaps not much 
less marked than his talent as a lawyer. His firm, though not the 
general counsel for the company, was frequently employed by it. In 
1906 an attempt was made before the Massachusetts Legislature to 
have an act passed declaring void so-caUcd “tying clauses” in leases 
under which the company lot out its machinery. At the request of 
Mr. Winslow, the president, Mr. Brandeis appeared before a commit¬ 
tee and made an argument against the bill. It will be noted that the 


NOMINATION OF LOUIS D. BRANDEIS. 


57 


bill proceeded upon the assumption that the tying clauses were per¬ 
fectly legal. It proposed to outlaw them. Up to that time the 
legality of the clauses in question had not been the subject of any 
special comment, and nothing appears to show that the Brandeis 
firm had ever been called upon to express an opinion on the subject. 
In the effort to defeat this legislation the Shoe Machinery Co. had 
the cooperation of a number of the shoe manufacturers, clients of 
Brandeis, whose sympathy and help had been enlisted partly, at 
least, through his efforts. 

The controversy directed attention in a special way to the specific 
provisions of the leases and the legislation failed, due to some extent 
at least, to a promise secured by Brandeis from Winslow to confer 
with the shoo manufacturers concerning certain provisions of the 
leases to which, as the contest proceeded, they expressed a decided 
objection. These conferences took place in the fall, Brandeis insist¬ 
ing that the leases should be changed, but without convincing Wins¬ 
low. Thereupon Brandeis resigned as a director of the company. 
Some lawsuits then pending, apparently of no great consequence, in 
which his firm represented the company, were afterwards tried, but save 
for that work all his relations with the company ceased. 

In 1907 the Massachusetts Legislature passed an act outlawing 
tying contracts. The bright legal minds which then guided the 
affairs of the Shoe Machinery Co. found it easy to circumvent the 
law, as they thought, by inserting a provision in the lease authorizing 
the company to cancel it at will. A lease could be avoided, then, 
against any man who ^pealed to the new law. 

In 1911 the Supreme Court affirmed the decisions in the Standard 
Oil and American Tobacco Co. cases. Other decisions were rendered 
shakmg the faith of many people that a combination, the basis of 
which was patent rights, was immune under the Sherman law. 
Enlightened by these cases the Brandeis firm gave an opinion to the 
effect that the tying clauses were void under the Sherman Act, of 
course with respect to interstate business. 

Meanwhile the Thomas G. Plant Co. was acquired by the Shoe 
Machinery Co., as heretofore recited. Thereafter at hearings be¬ 
fore congressional committees and in public addresses to illustrate 
some point he was making in connection with the trust problem, 
Brandeis frequently referred to the oppressive tyhig clauses of the 
Shoe Machinery Co.—which by the way were a growth dating from 
1861—and to practices of that company, all of which he roundly 
denounced. It is not claimed that he ever disclosed any facts con¬ 
cerning its business not long public property, of which he might have 
learned either as director of the company or as casual attorney for 
it. Indeed, the thmgs of which he complamed had already been 
communicated to the Department of Justice, and had been the subject 
of comment by representatives of the shoe manufacturers before 
committees of Congress. 

Mr. Winslow seems to be possessed with the idea that because 
Brandeis had taken fees from the Shoe Machinery Co. he bound him¬ 
self forever not to criticize its policy or its practices—that in a way he 
had violated his fealty. It is not an uncommon view on the part of 
those who manage great industries and command many men that they 
may insure the support of lawyers on public questions by putting them 
on the pay roll or paying them from time to time for legal services 


58 


NOMINATION OF LOUIS D. BRANDEIS. 


In the case of Brandeis the assumption seems not to have been well 
founded. In that he did something to dispel that notion, he deserves 
well of his profession. 

It is claimed that in some respects his position in relation to ques¬ 
tions in which that company was concerned was inconsistent. 
Doubtless he finds it easy to reconcile whatever differences may appear 
or he may frankly admit that on at least one occasion he was in error. 
What if he was inconsistent ? Is it forbidden to a man that he change 
his mind ? 

If in the impetuosity of attack or the ardor of advocacy he was led 
sometimes into giving too vivid a hue to the facts touching the 
methods of business oi Mr. Winslow^s company or drew unwarranted 
conclusions from them, there was no such obhquity of mind disclosed 
or faults of character revealed as would in any wise unfit him for 
judicial duties. It is impossible in reason to attribute his attitude 
toward the Shoe Machinery Co. after he parted company with it to 
any but the most creditable motives. There had been no quarrel, no 
heated interchanges, when the separation came that might have bred 
some deep-seated resentment to satisfy which the subsecment accusa¬ 
tions were made by Brandeis. He was moved either by a sincere 
purpose to serve the public interest or he was playing the part of a 
demagogue. Few who plead the cause of the great public escape the 
imputation from those whose privileges they seek to curtail of pan¬ 
dering to popular prejudice. 

In the Illinois Central matter he was getting proxies in New 
England for what may be called the Harriman interests as against 
the Fish interests while he was fighting the merger of the Boston & 
Maine. In these matters, too, it is said he occupied positions that 
were wanting in consistency. It would serve no useful purpose to 
inquire whether the local fight was an attempt to “Harrimanize’’ 
New England or whether the ousting of Fish was to be desired not¬ 
withstanding the influence of Mr. Harriman would be extended. 

THE GILLETTE SAFETY RAZOR CASE. 

I shall not enter into the details of this matter. Brandeis’s firm 
was employed to defend the directors of that company in a malad¬ 
ministration suit, and to resist actions brought by various parties 
against the directors to rescind sales of stock sold them without dis¬ 
closing the true value of it and the condition of the company. 

While these actions were pending the defendants quarreled. Cer¬ 
tain of them, including Gillette, the inventor of the device, fearing a 
plot on the part of others to oust them from the directory, went to 
Brandeis and employed him to help them to secure enough out¬ 
standing stock to give them control. He did so, and the firm con¬ 
tinued to defend them all, in the actions in which they were employed, 
until they were finally disposed of. None of the parties are complain¬ 
ing, but the plaintiff in one of the annulment suits had some stock. 
Brandeis besought his attorney to induce his client to sell. He did so, 
and the stock was acquired. Now the attorney for another claimant 
prosecuting a similar suit, but who owned no stock of record, had been 
associated on the record as counsel for the plaintiff. The original 
attorney asserts that Brandeis asked him in the course of the negoti¬ 
ations not to mention the matter to the attorney for the other claim- 


NOMINATION OF LOUIS D. BRANDEIS. 


59 


ant who had thus been associated. He bore no relation whatever to 
the directors to whose interests it is suggested Brandeis was not 
faithful. They are, as stated, not complaining, nor does it appear 
that they ever did complain. 

THE ADVANCE RATE CASE. 

Mr. Brandeis was employed by the Interstate Commerce Commis¬ 
sion to resist the apphcation of the railroads made in 1913 for a 5 per 
cent increase in freight rates. He had appeared for certain shippers 
in a similar apphcation which had been made in 1910, and which had 
been denied. 

Clifford Thorne, one of the railroad commissioners of the State of 
Iowa, appeared for various shippers and for the State authorities for 
a number of the Central Western States, who naturally resisted any 
raise. 

The inquiry involved two questions; first, as to whether the net 
revenues of the railroads as a whole were adequate—that is, without 
any new economies or change of business methods; and, second, if 
they were not, how were the net revenues to be increased, and par¬ 
ticularly whether they were to be increased by a general raise. 

The shipper is not ordinarily concerned, or, at least, not so deeply 
concerned about what the rate is going to be on any commodity 
except his own. It may be that the rates as a whole do not produce 
the requisite revenues and that something additional ought to be 
raised by an increase on his particular line of goods. 

An attorney to represent all interests, as one employed W the 
commission must, approaches the proposition from a slightly different 
angle from that from which the attorney for the shipper views it. 

It was assumed, however, that the railroads would be represented 
by able counsel who might be rehed upon to bring out all facts helpful 
to their side of the case. 

Mr. Thorne, whose diligence and fidehty, not to speak of his talents, 
which are undoubtedly of high order, can not be too much com¬ 
mended, in his testimony and m his argument before the commission 
advanced that the net revenues on the whole were suj0B.cient to pay 
the companies a reasonable return on their investment. 

Mr. Brandeis, in closing the case, declared that in his opinion they 
were not on the whole sufficient. He then proceeded to tell how by 
making readjustments here and instituting economies there they could 
be made sufficient without any raise in general rates. The increase 
was denied. It is said that Brandeis should not have made the ad¬ 
mission that he did. Naturally it was disappointing to Mr. Thorne, 
but no one suggests, not even Thorne, except from his manner, that 
Brandeis had not reached the conclusion he announced after a thor¬ 
ough and painstaking inquiry, bringing to bear on the subject his 
masterful faculty in the analysis of accounts. But it is asserted that 
he might have said, “If it be conceded, etc./^ or “I shall assume for 
the purpose of the argument, etc.’^ 

Mr. Brandeis^s critics are hard to please. In the Ballinger and 
Goldsmith cases it is said he should have been more frank with the 
court; in this case, that he should have been less so. 

The remainder of the matters submitted to the committee do not 
seem to require notice. It would be useful, perhaps, if time per- 


60 


NOMINATION OF LOUIS D. BRANDEIS. 


mitted, to outline them in order to show the frivolous character of 
most of them—indicating a straining after results and a conscious¬ 
ness that the case made on the matters reviewed is a weak one. 

The real crime of which this man is guilty is that he has exposed 
the iniquities of men in high places in our financial system. He has 
not stood in awe of the majesty of wealth. He has, indeed, often 
represented litigants, corporate and individual, whose commercial 
rating was high, but his clients have not been exclusively of that 
class. He seems to have been sought after in causes directed against 
the most shining marks in it. He has been an iconoclast. He has 
written about and expressed views on social justice,’^ to which 
vague term are referred movements and measures to obtain greater 
security, greater comfort, and better health for the industrial workers— 
signifying safety devices, factory inspection, sanitary provision, 
reasonable hours, the abolition of child labor, all of which threaten a 
reduction of dividends. They all contemplate that a man’s a man 
and not a machine. A letter addressed to me by Hon. David I. 
Walsh, concerning his activities in a public way in the State of Mas¬ 
sachusetts, affords some light on the opposition to this nomination. 
It is made an appendix hereto. 

It is said that it is to be regretted that any such controversy as 
this in which we are involved should arise over a nomination of a 
justice of the Supreme Court. So it is. But when it is said further 
that one might better be chosen over which no such bitter contention 
would arise, I decline to follow. It is easy for a brilliant lawyer so to 
conduct himself as to escape calumny and villification. AU he needs 
to do is to drift with the tide. If he never assails the doer of evil 
who stands high in the market place, either in court of before the pub¬ 
lic, he will have no enemies or detractors or none that he need heed. 
The man who never represents the public or the impecunious citizen 
in any great forensic contest, but always the cause of corporate wealth, 
never has these troubles. It is always the other fellow whose pro¬ 
fessional character is a little below par. 

The bar is still the bulwark of tne liberties of the people. To it 
they must look in the future as they have looked in all of our history 
for fearless champions. Discouragements enough beset the ambi¬ 
tious youth who resolutely sets out upon the path of devotion to duty 
and to the cause of justice, who strives to render some real public 
service. I do not care to warn him to abandon the hope of reaching 
the summit of his profession by that route. 

My vote is for the confirmation of the nomination of Louis D. 
Brandeis for associate justice of the Supreme Court. 

Kespcctfully submitted. 

Thomas J. Walsh. 

April 3, 1916. 


APPENDIX. 

Washington, D. C., February 7, 1916. 

My Dear Senator Walsh: It seems to me a public duty to write to you in'regard 
to the appointment of Mr. Louis D. Brandeis, of Massachusetts, as a justice of the 
Supreme ('ourt of the United States. During the two years I was governor of Massa¬ 
chusetts, and in the years preceding them, I had repeated occasions to observe tliis 
man and his high ideals and common sense; his wide practical knowledge of the law 
his extensive understanding of the business, economic, and social problems of oui 



NOMINATION OF LOUIS D. BKANDEIS. 


G1 


time; his sound judgment and ardent devotion to the public welfare. As you know, 
we are justly proud of the number and ability of our public-spirited men in Massa¬ 
chusetts, and it would be difficult to point out a better example of generous, unpaid, 
diligent constructive work upon the side of the public interests than that which has 
been done by Mr. Brandeis. 

On numerous occasions, beginning at least as far back as 1896, whenever the creation 
and control of the Boston subways was before the legislature, he has been, as a private 
citizen, a tireless and successful leader against powerful opposition in support of the 
principle that the value of the subway franchises should be kept for the public, after 
giving to the operating company a reasonable return for services rendered. He 
declined to accept any compensation for his long continued and very valuable con¬ 
structive work during all these years in this cause. 

Wlien the gas situation in Boston appeared to be in a hopeless condition he luged 
again as a private citizen the plan by which the dividends of the gas company were 
made dependent upon the price charged for gas to the consumers. This has resulted in 
a reduction in the price of gas to the public and in a corresponding increase in divi¬ 
dends to stockholders of the company. 

When the insurance investigations occurred he devised and successfully pressed for 
legislation in Massachusetts permitting, for the first time in this country, our savings 
banks to issue small-payment life insurance policies. This has resulted in an oppor¬ 
tunity for our working people to insure themselves at much lower rates than were being 
charged by the industrial insurance companies and has led these companies to make 
lower rates. To my personal knowledge hir. Brandeis has given annually thousands 
of dollars to further the work of bringing to the working people of our State this oppor¬ 
tunity for less costly insurance. For more than 20 years prior to the Massachusetts 
law there had been no reduction in the cost of industrial insurance, but since the pas¬ 
sage of the law so successfully advocated by Mr. Brandeis in Massachusetts, the pre¬ 
miums of the old-line companies have been reduced on an average 20 per cent, thus 
saving to the people of this country, insured in industrial companies, from $15,000,000 
to $20,000,000 annually and to the people of Massachusetts about $1,000,000. 

The system of arbitration which he devised for the New York Garment Workers is 
an equally significant example of his judicial qualities and his public service in other 
fields. 

In 1906 the people of New England began to awaken to the fact that the New Haven 
Railroad was apparently successfully seeking to create a New England transportation 
monopoly. The event which focused public opinion most sharply was the acquisi¬ 
tion of the controlling interest in the Boston & Maine Railroad. Mr. Brandeis, again 
as a private citizen, commenced an exhaustive study of this railroad problem and 
made public an analysis of the financial condition of the New Haven Railroad, point¬ 
ing out for the first time to the people of New England the inevitable disaster sure 
to result from the course of mismanagement and waste then being pursued. His advice 
was unheeded, his warning derided, and his motives irnpugned. But time has shown 
that his conclusions were based upon carefully ascertained facts, to which he applied 
the clearest and most cogent reasoning power. Three years ago what he prophesied 
nine years ago became apparent to all and is now a matter of public knowledge and 
of record in Senate documents and elsewhere. 

I instance these, among many public services covering a long period of years, as 
illustrative of the work done as a private citizen in the service of the public interest 
without compensation, at a large expenditure of his own time in the midst of a very 
active professional life. 

Indeed, in extensive acquaintance with public men I know of no one who without 
emolument or honors of public office has given so much of the valuable constructive 
service of a trained lawyer to the public weal as Mr. Brandeis. 

I have written mainly of Mr. Brandeis’s public work for the past 20 years, but I 
would not have you overlook that before he engaged in these public activities out of 
which have grown results for which he is entitled to the gratitude of the American 
people, he had achieved already a position at the Massachusetts bar which would well 
have warranted his appointment to the Supreme Court at the age of 40. He is a great 
lawyer and a great citizen. Is not this a combination for a great judge? 

Were I not hastening on a far journey I would seek a personal interview with the 
committee, but failing such opportunity, I venture to emphasize and perhaps to 
repeat some of the things I said to you orally, and I hope that you will communicate 
them to your committee, together with my very best respects. 

Very sincerely yours, 

David I. Walsh, Boston, Mass. 


Hon. Thomas J. Walsh, 

The Senate, Washijigton, D. C, 


On May 10, 1916, the Committee on the Judiciary appointed the 
same subcommittee, with the exception that Senator Borah took the 
place of Senator Cummins (absent), to take further evidence regard¬ 
ing the matter brought to the attention of the committee by a member 
of the committee concerning the relation of Mr. Brandeis with a drug 
merger. 

This subcommittee met on May 12, 1916, and heard the testimony 
of Mr. Louis K. Liggett, Mr. Frederick E. Snow, and Mr. George AY. 
Anderson, and also heard the testimony of Hon. James S. Harlan, 
member of the Interstate Commerce Commission, all of which evi¬ 
dence was printed as a part of the record. 

It seems that there was a holding company formed to take over 
certain drug companies, and Mr. Brandeis was consulted as to the 
legality of the corporation and proposed combination. 

There was nothing in the employment out of the ordinary, and 
since the evidence was taken no one has suggested that there was any¬ 
thing improper in the employment or anything to be criticized in 
what Mr. Brandeis said or did. It was a proper employment, and, 
unless this committee is to supervise the private practice of the law. 
there is nothing regarding the charges to discuss. 

This supposed charge is one of many which come under the notice 
of an honorable member of the committee, and he in good faith 
brought it to the attention of the committee, which, regarding its 
source, felt called upon to take the evidence. 

We venture to introduce further comment upon this nomination 
with the following from an address made by Mr. Brandeis on May 4, 
1905, before the Harvard Ethical Society, as follows: 

It is true that at the present time the lawyer does not hold as high a position 
with the people as he held 75 or, indeed, 50 years ago; but the reason is not lack 
of opportunity. It is this: Instead of holding a position of independence, be¬ 
tween the wealthy and the people, prepared to curb the excesses of either, able 
lawyers have to a large extent allowed themselves to become adjuncts of great 
corporations and have neglected the obligation to use their powers for the pro¬ 
tection of the people. 

The leading lawyers of the United States have been engaged mainly in sup¬ 
porting the claims of the corporations; often in endeavoring to evade or nullify 
the extremely crude laws by which legislators sought to regulate the power or 
curb the excesses of corporations. 

For nearly a generation the leaders of the bar have, with few exceptions, not 
only failed to take part in constructive legislation designed to solve, in the 
public interest, our great social, economic, and industrial problems, but they 
have failed likewise to oppose legislation prompted by selfish interests. 

No doubt the distinguished audience which heard this address, as 
well as the bar and public generally, approved it; that the dis¬ 
tinguished author of it deigned to put it into actual practice should 
go to his credit rather than to his prejudice. 

The Five Per Cent Bate case was somewhat illuminated by the 
testimony of Hon. James S. Harlan, member of the Interstate Com¬ 
merce Commission, found in part 22 of the hearings at page 157. 
This evidence makes it clear that the charges brought by Mr. Thorne 
62 


NOMINATION OP LOUIS D. BRANDEIS. 


63 


against Mr. Brandeis are certainly not taken seriously by the Inter¬ 
state Commerce Commission. Mr. Harlan reviews the whole cir¬ 
cumstances concerning the employment, and we quote from that part 
of his evidence, as follows: 

Senator Walsh. Mr. Harlan, I want to ask you a question or two. I should 
like to inquire of you whether it had ever occurred to you or to any of the 
members of the commission, so far as you are permitted to speak for them, that 
]\Ir. Brandeis had been faithless to the commission or to the public in the dis- 
charge of the duties which he undertook? 

Mr. Haelan. Senator, I feel assured that I represent the views of my col¬ 
leagues when T say that no such thought ever occurred to any of us. So far as 
I am concerned, personally, if I may express a personal view, I can not asso¬ 
ciate such an idea with Mr. Brandeis. It is not consistent with my view of him 
or with the impressions that I have formed from a long acquaintance with him. 

Senator Walsh. Doubtless you know, Mr. Commissioner, the nature of the 
complaint made in this connection. It appears to be that, the questions 
involved being, first, whether the net revenues of the railroads as a whole, 
without any economies or change of business methods, were adequate, and, 
second, if they were not, by what means they should be made adequate. Mr. 
Brandeis, in opening the discussion before the commission, made the state¬ 
ment in effect that, in his opinion, the revenues of the railroad companies were 
not on the whole adequate, considering the needs of the railroads and the gen¬ 
eral welfare of the community. Do you recall the statement to which I 
allude? 

Mr. Haelan. Yes; I do. Senator. 

Senator Walsh. In a general way at least? 

Mr. Haelan. Yes; I do. 

Senator Walsh. What was your view as to the propriety or the impro¬ 
priety of Mr. Brandeis expressing any such opinion as that to you in the 
course of his discussion of the matter as he had investigated it? 

Mr. Haelan. It never occurred to me that there was any impropriety in it. 
On the contrary, as I view the situation, it was precisely the sort of view that 
we looked to counsel to express as the result ot his study of the case and the 
record as it lay before us. I do not mean, in saying that, that we had expected 
him to reach that conclusion on the record before us; I mean to say that it 
was that sort of judgment that we wanted from all the counsel discussing that 
case, and particularly from Mr. Brandeis. He had, of course, been in the case 
from the beginning. We wanted him to develop the facts—all the facts—that 
might bear upon the public interest, and I know of no more important fact in 
such a case than precisely that question. If the revenues of the carriers, the 
net incomes of the carriers, were not sufficient that was something that we 
ought to know. It was one of the questions that the commission undertook to 
investigate. Having retained Mr. Brandeis to bring out all the facts of 
value, as I have explained, I do not see how he could have failed, when dis¬ 
cussing the record, to advise us of any conclusion he had reached from his 
study of the testimony and evidence adduced, and to point out from the record, 
as he did, the reasons for that conclusion. We were entitled to have the views 
of those who had studied the record. As far as I know, the improijriety of 
the statement by him, to which you refer, has never occurred to any of my 
colleagues. But in saying that, and in what I have said or shall say I speak 
only for myself. 

Senator Walsh. That is all. 

Senator Woeks. IMr. Harljtn, that admission, if we call it an admission, 
practically covered the whole case, did it not? 

Mr. Haelan. Why, no, Senator. 

Senator Woeks. The very question you had before you was whether these 
rates should be increased as asked for by the carriers, was it not? 

IMr. Haelan. Well, whether the net revenues were adequate in the public 
interest was a very different question from the reasonableness of the rates 
which were then in existence, or the rates which were proposed by the carriers. 

Of Mr. Brandeis, Mr. Harlan said further in his testimony: 

Mr. Haelan. I do not believe that I am prepared to make any response to 
that question. I will say that, as far as my experience goes with Mr. Brandeis, 
he is a man who showed at all times great consideration for others. I do not 


64 


NOMINATION OF LOUIS D. BEANDEIS. 


belie-ve that INIr. Brandeis would consciously have done an unfair thing. I 
am perfectly certain that in saying what he did he was moved hy a sense of 
duty, upon the record, to the commission. No other thought about it has ever 
occurred to me, and I never have heard any of my colleagues indicate any 
criticism of it, or that they were surprised by it. Now, that may not be 
responsive to your question. 

Again, in answer to a question by Senator Fletcher, the following 
occurred: 


Senator Fletcher. And no matter what Mr. Brandeis or any of the counsel 
may have stated in argument, the commission itself had the whole record be¬ 
fore it and all the facts were collected,, and there has been no claim that any 
shipper or any other interest was omitted in the collection of the facts. 

Mr. Harlan. No ; I have heard no criticism of that kind, and I do not think 
there is any basis for such criticism. I want to say also that I do not think 
the commission ever dealt with any case that engaged the personal attention 
of each commissioner more deeply and for a greater length of time than did the 
Five Per Cent case. 


Again, in answer to a question by Senator Works, Mr. Harlan said: 


Senator Works. I believe it was testified at this hearing with respect to 
this particulai case, by one of those attorneys that you had previously em¬ 
ployed, that he never assumed to give any such advice or opinion respecting 
such a matter as this but simply developed the facts. 

Mr. Harlan. I do not know who that was; but my own recollection is, and 
my understanding is, that we expect those who are retained by the commission 
for this purpose, to be of aid to the commission not only in developing the 
facts but after weighing the record in pointing to the conclusions that the 
record seems to justify; and as I have said before, I say again, that I heard 
no comment or criticism in the commission of Mr. Brandeis’s course upon the 
argument. 

Senator Fletcher. I understand that there was in your mind in writing 
the letter that presenting the other side meant in the argument of this case 
and when the facts were collected? 

Mr. Harlan. When the broad record was made. 

Senator Fiktcher. As you expressed it further down in the letter: “And 
I have been asked to ascertain whether your engagements and inclinations are 
such as to permit you to undertake the task of seeing that all sides and angles 
of the case are presented of record,” etc. Was there any claim or suggestion 
that he failed or neglected to do that? 

Mr. Harlan. I have heard none at all. 

Senator Fletcher. Even Mr. Thorne, in complaining about the statement 
made by Mr. Brandeis, never contended that Mr. Brandeis had failed in the 
effort to collect all the facts in the case? 

Mr. Harlan. I do not recall that he made that criticism. Senator. 

Senator Fletcher. Then, when you announced one issue in the language 
mentioned, “Do the present rates of transportation vield an adequate return 
to common carriers”? Is not that a different question than whether or not 

the net income of the railroads—the net operating revenues of the railroads_ 

are siifiicienr ? 

Mr. Harlan. I regard it, of course, as a very different question. 

Senator Fletcher. Yes. 


Mr. Harlan. I mean there is a very distinct difference between the two 
(piestions. 

Senator Fletcher. A very distinct difference? 

Mr. Harlan. Yes. 


Senator Fletcher. So that when an admission is made that the net operaU 
ing revenues of a railroad company are insufficient, or the net income is Sn- 
sufficient as the road is being operated, it is not an admission that the rates nre 
inadequate? 

Mr. Harlan No; by no means. The adequacy of net operating revenues 
brings up questions of credit, adequate facilities, efficient service extension of 
trackj and matters of that kind. Wliether tlie rates are adequate brings into 
view their reasonab eness and related questions. As I have before pointed out 
the commission held in the first report in the Five Per Cent case that the net 


NOMINATION OF LOUIS D. BEANDEIS. 


65 


operating revenues of the carriers were inadequate in the public interest, but 
at the same time we-denied the increased rates demanded by the carriers and 
permitted an increase in central freight association territory only in connec¬ 
tion with a finding that those rates were unduly low when compared with rate 
structures elsewhere in the country. 

Senator Chilton. It therefore follows that Mr. Brandeis’s admission did 
not answer and conclude the first proposition that you presented? 

Mr. Harlan. Well, it certainly did not conclude it with the commission. 

At another place in the evidence Mr. Harlan says: 

But I do not understand that Mr. Brandeis was on either side. He was there 
in the public interest. 

At another place, speaking for the commission, he said that the 
services of Mr. Brandeis were “ eminently ” satisfactory. 

It seems to us that this evidence makes it perfectly clear that the 
charge of Mr. Thorne can not be sustained, but that on the contrary 
the conduct of Mr. Brandeis in this matter was honorable, in every 
way satisfactory to the commission, and showed fidelity to a most 
important trust. 

In view of the fact that some citizens of great prominence have 
protested against this nomination, reference may properly be made 
to certain letters concerning Mr. Brandeis. One is a letter from the 
President of the United States in answer to a letter from Mr. Cul¬ 
berson, chairman of the Committee on the Judiciary, which letter 
and the reply thereto follow: 

United States Senate, 

Committee on the Judiciary, 

Washington^ D. C., May 5, 1916. 

Dear Mr. President: As you are aware, the Committee on the 
Judiciary of the Senate has under consideration the nomination of 
Mr. Louis D. Brandeis for Associate Justice of the Supreme Court of 
the United States. 

In response to the formal and usual request of the committee 
made to the Attorney General for all papers in the possession of his 
department touching this nomination, he replied that there were no 
such documents in his department. 

Inasmuch as this request usually results in the presentation to the 
Committee on the Judiciary of papers showing the reasons which 
actuated the President in making the nomination, I would be glad 
to have you state these reasons, for the benefit of the committee, in 
case you see no objection to so doing. 

Very sincerely, yours, C. A. Culberson. 

To the President, 

The White Bouse, 


The White House, 

Washington., May J, 1916. 

My Dear Senator: I am very much obliged to you for giving 
me an opportunity to make clear to the Judiciary Committee my 
reasons for nominating Mr. Louis D. Brandeis to fill the vacancy in 
the Supreme Court of the United States created by the death of Mr. 
Justice Lamar, for I am profoundly interested in the confirmation 
of the appointment by the Senate. 

Ex. Kept. 2, pt. 1, 64-1-5 



66 


NOMINATION OF LOUIS D. BKANDEIS. 


There is probably no more important duty imposed upon the 
President in connection with the general administration of the Gov¬ 
ernment than that of naming members of the Supreme Court; and I 
need hardly tell you that I named Mr. Brandeis as a member of that 
great tribunal only because I knew him to be singularly qualified by 
learning, by gifts, and by character for the position. 

Many charges have been made against Mr. Brandeis; the report 
of your subcommittee has already made it plain to you and to the 
country at large how unfounded those charges were. They threw a 
great deal more light upon the character and motives of those with 
whom they originated than upon the qualifications of Mr. Brandeis. 
I myself looked into them three years ago when I desired to make 
Mr. Brandeis a member of my Cabinet and found that they pro¬ 
ceeded for the most part from those who hated Mr. -Brandeis because 
he had refused to be serviceable to them in the promotion of their 
own selfish interests and from those whom they had prejudiced and 
misled. The propaganda in this matter has been very extraordinary 
and very distressing to those who love fairness and value the dignity 
of the great professions. 

I perceived from the first that the charges Tvere intrinsically in¬ 
credible by anyone who had really known Mr. Brandeis. I have 
known him. I have tested him by seeking his advice upon some of 
the most difficult and perplexing public questions about which it was 
necessary for me to form a judgment. I have dealt with him in mat¬ 
ters where nice questions of honor and fair play, as well as large 
questions of justice and the public benefit, were involved. In every 
matter in which I have made test of his judgment and point of view 
I have received from him counsel singularly enlightening, singularly 
clear-sighted and judicial, and, above all, full of moral stimulation. 
He is a friend of all just men and a lover of the right; and he knows 
more than how to talk about the right—he knows how to set it for¬ 
ward in the face of its enemies. I knew from direct personal knowl¬ 
edge of the man what I was doing when I named him for the highest 
and most responsible tribunal of the Nation. 

Of his extraordinary ability as a lawyer no man who is competent 
to judge can speak with anything but the highest admiration. You 
will remember that in the opinion of the late Chief Jusice Fuller he 
was the ablest man who ever appeared before the Supreme Court of 
the United States. “ He is also,” the Chief Justice added, “ abso¬ 
lutely fearless in the discharge of his duties.” 

Those who have resorted to him for assistance in settling great 
industrial disputes can testify to his fairness and love of justice^ In 
the troublesome controversies between the garment workers and 
manufacturers of New York City, for example, he gave a truly 
remarkable proof of his judicial temperament and had what must 
have been the great satisfaction of rendering decisions which both 
sides were willing to accept as disinterested and even-handed. 

Mr. Brandeis has rendered many notable services to the city and 
State with which his professional life has been identified. He suc¬ 
cessfully directed the difficult campaign which resulted in obtaining 
cheaper gas for the city of Boston. It was chiefly under his guid¬ 
ance and through his efforts that legislation was secured in Massa¬ 
chusetts which authorized savings banks to issue insurance policies 


NOMINATION OF LOUIS D. BEANDEIS. 


67 


for small sums at much reduced rates. And some gentlemen who 
tried very hard to obtain control by the Boston Elevated Railway 
Co. of the subways of the city for a period of 99 years can probably 
testify as to his ability as the people’s advocate when public interests 
call for an effective champion. He rendered these services without 
compensation and earned, whether he got it or not, the gratitude 
of every citizen of the State and city he served. These are but a 
few of the services of this kind he has freely rendered. It will 
hearten friends of community and public rights throughout the 
country to see his quality signally recognized by his elevation to the 
Supreme Bench. For the whole country is aware of his quality and 
IS interested in this appointment. 

I did not in making choice of Mr. Brandeis ask for or depend 
upon “ indorsements.” I acted upon public knowledge and personal 
acquaintance with the man, and preferred to name a lawyer for this 
great office whose abilities and character were so widely recognized 
that he needed no indorsement. I did, however, personally consult 
many men in whose judgment I had great confidence, and am happy 
to say was supported in my selection by the voluntary recommenda¬ 
tion of the Attorney General of the United States, who urged Mr. 
Brandeis upon my consideration independently of any suggestion 
from me. 

Let me say by way of summing up, my dear Senator, that I nomi¬ 
nated Mr. Brandies for the Supi-eme Court because it was, and is, 
my deliberate judgment that, of all the men now at the bar whom 
it has been my privilege to observe, test, and know, he is exceptionally 
qualified. I can not speak too highly of his impartial, impersonal, 
orderly, and constructive mind, his rare analytical powers, his deep 
human sympathy, his profound acquaintance with the historical 
roots of our institutions and insight into their spirit, or of the many 
evidences he has given of being imbued to the very heart with our 
American ideals of justice and equality of opportunity; of his knowl¬ 
edge of modern economic conditions and of the way they bear upon 
the masses of the people, or of his genius in getting persons to unite 
in common and harmonious action and look with frank and kindly 
eyes into each other’s minds, who had before been heated antago¬ 
nists. This friend of justice and of men will ornament the high court 
of which we are all so justly proud. I am glad to have had the op¬ 
portunity to pay him this tribute of admiration and of confidence; 
and I beg that your committee will accept this nomination as coming 
from me quick with a sense of public obligation and responsibility. 

With warmest regard, cordially and sincerely, yours, 

Woodrow Wilson. 

Hon. Charles A. Culberson, 

United States Senate. 

We submit also the following letter from Prof. Charles W. Eliot, 
emeritus president. Harvard University: 

Cambridge, Mass., May 17, 1916. 

Dear Sir : I have known ^Ir. Louis D. Brandeis for 40 years, and believe that 
1 understand his capacities and his character. He was a distinguished student 
in the Harvard Law School in 1875-78. He possessed by nature a keen intelli¬ 
gence, quick and generous sympathies, a remarkable capacity for labor, and 
a character in which gentleness, courage, and joy in combat were intimately 
blended. His professional career has exhibited all these qualities, and with 


68 


NOMINATION OF LOUIS D. BEANDEIS. 


tliem much practical altruism and public spirit. He has sometimes advocated 
measures or policies which did not commend themselves to me; but I have 
never questioned his honesty and sincerity, or his desire for justice. He has 
become a learned jurist. 

Under present circumstances, I believe that the rejection by the Senate of his 
nomination to the Supreme Court would be a grave misfortune for the whole | 
legal profession, the court, all American business, and the country. 

Sincerely, yours, 

Charles W. Eliot. 


Hon. Charles A. Culberson. 


Also, the following letter from Charles B. Greenough : 


Hon. Charles A. Culberson. 


262 Washington Street, 

Boston, Mass., May 19, 1916. 


Dear Sir: In reading the report‘of the hearings before the subcommittee 
of your committee on the question. of approval of the nomination of Mr. 
Brandeis it has seemed to me that the testimony of some of the lawyers from 
this city as to the reputation of Mr. Brandeis did not do him justice. 

I think I am able to speak with some authority, as I have been secretary of 
the bar association, treasurer, member of the council, vice president, and presi¬ 
dent from 1902-1905. These positions gave me an excellent opportunity of 
knowing the character and reputation of the members of the bar. I was also 
chairman of the grievance committee of the bar association for 15 years, 
and during these years there had not been to my knowledge any complaint 
against Mr. Brandeis’s character or method of practice. 

I know there is among a number of our leading attorneys a strong feeling 
of antagonism to Mr. Brandeis, which I attribute entirely to two causes: 
Fiifst, the vigorous and I think outrageous attacks upon him for his opposi¬ 
tion to the United Shoe Machinery Co. in 1909. Thousands of pamphlets were 
sent to members of the bar. I myself received several, and I have no doubt 
many received their impressions from these public repeated attacks, which 
could not be as widely answered. The second reason was his attack on the 
New York, New Haven & Hartford Railroad Co. All holders of the stock 
resented his attacks and he was called a liar, a railroad wrecker, and many 
other similar names. As every trustee in New England held the stock—I held 
a lot of it myself, and was for a time inclined to resent his action—I have 
no doubt the distrust of him was increased thereby. That he was right, and 
conclusively shown to be so, came too late to dissipate the impression already 
formed. 

At all times, however, and now his firm has the very best of reputation, and 
is the one most sought by students from the Harvard Law School. 

I think I am justified in saying that a large number of the members of 
the bar to-day have a great respect for his ability and for his remarkable 
devotion to the public good, and would retain him without hesitation and with 
entire confidence in any matter relating to their own interests. 

Very truly, yours. 


Charles B. Greenough. 


An impression has gone abroad that a great majority of the 
lawyers of Boston and vicinity are protesting against this nomina¬ 
tion. That is a great mistake, as may be shown, and we, therefore, 
attach some letters from prominent lawyers and eminent citizens of 
that community as an appendix to this report. It will be noted that 
among that number are the following: 

Roscoe Pound, new dean of Harvard Law School and eminent 
juridical scholar. 

George B. Dorr, friend of Samuel D. Warren. 

Joseph B. Eastman, member of Public Service Commission, Mas¬ 
sachusetts, formerly secretary Public Franchise League. 

David I. Walsh, recently governor of Massachusetts. 

A. S. Hall, lawyer, practicing in Boston during Brandeis’s entire 
career. 


NOMINATION OF LOUIS D. BEANDEIS. 


69 


W. T. A. Fitzgerald, register of deeds, Suffolk County, Mass. 

Lionel Norman, lawyer, characterizing narrowness of opposition. 

J. M. Head, lawyer, knowing Brandeis 40 years. 

Richard H. Dana, lawyer, long prominent leader in Civil Service 
Association. 

John W. Cummings, a leading lawyer, Bristol County, bar, sup¬ 
posed to have been offered and declined appointment to superior 
court. 

Melvin C. Adams, former United States district attorney. 

Joseph C. Pelletier, State district attorney. 

John A. Coulthurst, member of the city council and candidate for 
ma^mr. 

George U. Crocker, member finance commission. 

Samuel K. Hamilton, president Middlesex Bar Association. 

Roger Sherman Hoar, former Assistant Attorney General. 

eTames P. Magenis, finance commission. 

Frederick W. Mansfield, former State treasurer. 

Robert W. Nason, former assistant district attorney. 

W. R. Sears, of Whipple’s firm. 

John R. Thayer, of Worcester. 

James H. Vahey, formerly candidate for governor. 

George Wigglesworth. 

Arthur D. Hill, professor in Harvard Law School. 

Prof. William Z. Ripley, of Harvard. 

Rev. Edward Cummings, successor of Edward Everett Hale. 

Bernard J. Rothwell, former president, chamber of commerce. 

Henry S. Dennison, vice president, chamber of commerce. 

Robert A. Woods, license commissioner. 

William Lloyd Garrison. 

Mark de Wolfe Howe, editor Harvard Bulletin. 

President Bumpus, of Tufts College. 

Robert N. Washburn, brother of Representative Charles G. Wash¬ 
burn, of Worcester. 

It has been urged that in view of the fact that these charges 
have been made, and, at best, there may be still a doubt in the minds 
of many as to the truth of some of them, this nomination should be 
rejected. 

For the reasons stated in the report of the majority members of 
the subcommittee, we can not concur in this view, but there are many 
other considerations which make such a proposition unthinkable. 
First, the precedents of the Senate are against any such theory. The 
appointment of Chief Justice Marshall and Justice Story, Justice 
Taney and Justice Matthews were viciously attacked. 

There were no ex-presidents of the American Bar Association to 
give their testimony as to the first two, but they did not lack critics 
of such high position as to impair their reputation at the time, and 
the criticisms from those of a different political faith were in no 
wise confined to political opinion. 

Of Marshall, Thomas Jefferson said: 

Never will chicanery have a more difficult task than has now been accom¬ 
plished to warp the text of the law to the will of him who is to construe it. 

The judge’s inveteracy is profound and his mind of that gloomy malignity, 
which will never let him forego the opportunity of satiating it on a victim. 


70 


NOMINATION OF LOUIS D. BRANDEIS. 


An opinion is huddled up in conclave perhaps by a majority of one delivered 
as if unanimous, and with the silent acquiescence of lazy or timid associates 
by a crafty judge v>^ho sophisticates the law to his own mind by the turn of 
his own reason. 

It (Marshall’s Life of Washington) is written, therefore, pincipally with a 
view to electioneering purposes. It will consequently be out in time to aid you 
wuth information, as well as to point out the perversions of truth necessary to 
be rectified. 

These opinions from this respectable source were of a man of whom 
William Wirt said: 

Marshall was justly pronounced one of the greatest men of the country; 

and William Pinckney said: 

A man born to be the Chief Justice of any country into which Providence 
should have cast him; 

and John Quincy Adams said: 

He was one of the most eminent men that this country has ever produced. 

Chief Justice Marshall was elevated from the bar and held no 
judicial position before becoming Chief Justice of the United States. 

Of Mr. Justice Story, Josiah Quincy, jr., said: 

I remember my father’s graphic account of the rage of the Federalists, when 
“ Joe Story, that country pettifogger, aged 32,” was made a judg' of our highest 
court. 

On the other hand, John Quincy Adams says: 

The Associate Judges from the time of his (IMarshall’s) appointment have 
generally been taken from the Democratic or Jeffersonian Party. Not one of 
them excepting Story has been a man of great ability. 

In his “ Memoir of Joseph Story, LL. D.,” 1868, George S. Hillard 
says: 

Mr. Story, when he went upon the bench, was only 32 years old, a very early 
and, with the exception of Mr, .Justice Buller, an unprecedented age for a 
lawyer to be advanced to a seat upon the highest judicial tribunal of his coun¬ 
try. When we call to mind his youth and remember how earnest and con¬ 
spicuous he had been on the unpoplar side in politics, it will not be a matter of 
surprise to learn that the news of his appointment fell with something like 
consternation upon the elder, the more apprehensive, and the more conservative 
portion of the people of New England. His merits as a lawyer could be scanned 
only by his professional brethren; his sweet and generous nature could be ap¬ 
preciated only by his friends. The public knew him as an enthusiastic partisan; 
and it is not too much to say that with many there was an apprehension that, 
in his hands, rights and property would hardly be safe. It is hardly necessary 
to add, that the existence of such fears w'as a striking proof of the truth of Mr. 
Jefferson’s saying, “ How much we suffer from misfortunes that never happen.” 
From the moment he assumed his judicial office he shook the dust of politics 
from his feet, and he bore himself with such absolute impartiality that it is 
literally true that there was no act of his judicial life from which it could have 
been known to which of the two great parties which divided the country he had 
previously belonged. 

Roger B. Taney was nominated by President Jackson in January, 
1835, to be an Associate Justice. 

Chief Justice Marshall interested himself in support of the con¬ 
firmation. 

History records the following: 

At the last moment of the session the nomination of Mr. Taney was brought 
up in the Senate, and was indefinitely postponed, which was equivalent to a re¬ 
jection. 


NOMINATION OF LOUIS D. BRANDEIS. 


71 


It is sad to a reflecting man to witness in an august body like the Senate, 
composed at that time of men who, by their eminent abilities, would give the 
highest dignity to any legislative assembly in the world, the unreasoning domina¬ 
tion of party spirit, making it do an act of which every IMember was after¬ 
wards ashamed. (Memoirs of Roger Brooke Taney by Samuel Tyler, p. 242.) 

Chief Justice Marshall died in the summer of 1835, and on Decem¬ 
ber 28 President Jackson nominated Taney for Chief Justice. There 
T^^as violent opposition, particularly by Clay and Webster. On March 
15, 1836, the nomination was confirmed by a majority of 14 votes. 

The contest over the confirmation of Mr. Justice Stanley Matthews 
shows how easily mistaken conceptions concerning the predisposition 
of a judge upon questions of law or policy may develop into an un¬ 
warranted attack upon his moral qualities. 

He was nominated by President Hayes early in 1881 on the retire¬ 
ment of Mr. Justice Swayne. 

Charles Theodore Greve in his Life of Matthews (Great American 
Lawyers, Vol. VII, pp. 418-420) says: 

That his confirmation was bitterly opposed particularly by many in the East 
is a matter of public history. He had taken a most active part in one of the 
bitterest conflicts of modern politics and had been most conspicuous among the 
members of .the bar as a representative of corporations and capital. To the 
objections that might have been urged as the result of mere differences of judg¬ 
ment were added as always happens in such cases the calumnies of personal 
enemies. Even a most unfair version of the old Connelly case of a quarter of a 
century before was made to do service. The opposition was sufficient to pre¬ 
vent confirmation during the few remaining weeks of President Hayes’s term, 
but promptly after the inauguration of Garfield he, at Hayes’s request, sent the 
nomination once more to the Senate. The opposition continued for some time 
but this extraordinary proof of confidence, the selection by two Presidents, each 
from his own State and each familiar with his entire career, finally led to his 
confirmation on May 12, 1881. He took his seat upon the bench of the Supreme 
Court on May 17, and soon came to be recognized as one of its strongest mem¬ 
bers. Whatever opposition may have been manifested at the time of his nomi¬ 
nation was soon shown to be without foundation and those that led that oppo¬ 
sition were glad to acknowledge their error. Principal among these was Sena¬ 
tor Edmunds, who later bore testimony that “ the grounds upon which many 
Senators (myself among others) thought it unfit that he should be called to 
this particular public service, turned out to be entirely mistaken, and in the 
public respect toward which our solicitudes were directed, his opinions deliv¬ 
ered in this court and his assent to opinions upon that class of questions de¬ 
livered by other judges, justified the President of the United States in insisting 
upon his appointment and convinced me, and I think no doubt all the other 
Senators who were opposed to him at the time, that it was our mistake and not 
that of the President of the United States.” Senator McDonald, also a member 
of the Senate committee to which the nomination was sent, took occasion to 
brand as false any insinuations as to his conduct during the crisis of 1876-77, 
at which time he, McDonald, was one of the “ visiting statesmen ” on behalf of 
the Democratic National Committee. 

The Connelly case, just referred to, gave ample opportunity for 
unjust criticism. In 1859, when Matthews w^as United States at¬ 
torney for the southern district of Ohio, it became his duty to prose¬ 
cute Connelly, the reporter of a local newspaper, who was indicted 
for aiding in the escape of fugitive slaves. Matthews was then 
believed to be sympathetic with the antislavery cause, and the prose¬ 
cution was regarded as an unwarranted persecution by many in¬ 
fluential citizens. 


72 


NOMINATION OF LOUIS D. BEANDEIS. 


Another occasion on which Matthews found himself at the point 
where conflicting principles met was created by a resolution passed 
by the board of education of the city of Cincinnati, which provided: 

That religious instruction and the reading of religious books, including the 
Holy Bible, are prohibited in the common schools of Cincinnati, it being the 
true object and intent of this rule to allow the children of all sects and 
opinions, in matters of faith and worship, to enjoy alike the benefit of the 
common-school fund. 

Suit was brought to restrain the execution of this resolution. 
Matthews was at the time a pronounced Calvinistic Presbyterian. 
Nevertheless, he accepted employment to defend the board of educa¬ 
tion. His biographer says of him: 

Matthews’s appearance for the defense in this case shows as no other act of 
his life can show more plainly the liberal character of the man as well as his 
high conception of a lawyer’s duty. 

In arguing the case, Matthews said: 

It is easy to swim with the tide, to go with the current, to follow in the 
wake of the multitude. To do things that are popular is not hard. But to 
stand by a man’s individual moral convictions, in opposition not to enemies, 
but to friends, tries a man. If your honors please, it tries me. 

The New York Sun had many violent editorials against Stanley 
Matthews from January to May, 1881, most of them by reason of his 
alleged connection with the Pacific railroads or Jay Gould. They 
appear on these dates: January 27, February 1, 2, 4, 7, 9, 11, 12, 16, 
19, March 7, 19, 23, 24, 29, May 12 and 13. 

Those of February 1 and 4 refer to the Anderson letters and indi¬ 
cate on their face that Matthews had been the custodian of papers 
that showed that Anderson had forged false return to get the neces¬ 
sary Hayes count in Louisiana, and show clearly that Matthews 
after he had this paper in his possession was active in endeavoring 
to get Anderson a Federal position. Matthews had stated in his 
testimony before the investigating committee that he understood that 
this paper was got up for blackmailing purposes, and that Anderson 
had not in fact been guilty of fraud in connection with the returns. 
These editorials refer to the committee as a “ whitewashing ” com¬ 
mittee. 

The February 7 editorial sets out the virtual trade that was alleged 
to have been made by Matthews on behalf of Hayes, not to interfere 
with the local State governments in control of the Democrats in cer¬ 
tain States if the filibuster was stopped against the acceptance of the 
report of the Electoral Commission as to the presidential count. This 
editorial and some others refer to Mr. Justice Harlan’s appointment 
on the Supreme Court bench as having been a reward for his help in 
the fraudulent counting in of Hayes. 

Stanley Matthews was active in the Hayes-Tilden campaign of 
1876 and visted Louisiana as an observer of the count. Subsequently 
one James E. Anderson made statements which led to an investiga¬ 
tion by a select committee of the Senate: Allison, Ingalls, Hoar, 
Davis of Illinois, Whyte, and Jones of Florida, to determine what 
connection Matthews had had with real or pretended frauds in 
Louisiana and any promise of rewards that had been made to Ander¬ 
son in connection therewith. Anderson was apparently a Republi¬ 
can election officer. They had heard and considered Anderson’s 


NOMINATION OF LOUIS D. BEANDEIS. 


73 


testimony and Matthews’s testimony and decided that Matthews’s 
statement was correct; that is, that he had had nothing to do with 
inducing Anderson to suppress testimony or to give false testimony. 
But it did appear from Matthews’s statement that he had exerted 
himself to get an appointment in the Federal service for Anderson, 
apparently merely because he was, in Matthews’s view, a worthy and 
needy^ Republican. The committee, after absolving Matthews from 
guilt in any other respect, concludes its report: 

* * * \y 0 regard his action with respect to -Tames E. Ander¬ 

son’s effort to obtain an appointment to office, under the circumstances, as 
wrong and injurious to the public interest. (Report, Mar. 1, 1879, vol. 2 of 
1879, 45th Cong., 3d sess., S. Kept. 8G7.) 

^ Thus it may be seen that Mr. Brandeis will not be the first dis¬ 
tinguished lawyer to serve uj)on the Supreme Court of the United 
States after having been criticized most severely. 

It is easy to make charges, and there is too much proof in this case 
of a precoiiCerted effort to weaken the power of ^Ir. Brandeis before 
the public, to think of permitting insinuations and inuendoes to take 
the place of reasonable proof. We should be certain to have an 
honest, capable man upon the bench, but unless one be appointed 
who has not had the capacity and the courage to take part in the 
discussions of the last quarter of a century, which have been preg¬ 
nant with constructive legislation and decisions, as well as undergo¬ 
ing a revolution in public sentiment regarding many questions, then 
it would be hard to find one, whom either malice or interest could 
not easilv disqualify. For instance, take such an eminent man as 
Senator Root, now the president of the American Bar Association. 
We take it that practically every one who has protested against Mr. 
Brandeis would gladly accept Mr. Root as the kind of a man and the 
kind of the qualified lawyer who would adorn the Supreme Bench. 
Yet it is the irony of the present situation that in a report published 
in 1902 entitled “Root’s Record in Philippine Warfare,” Mr. Moore- 
field Storey, who has been most prominent in fighting the nomination 
of l\fr. Brandeis, joined in summing up conclusions, among others, 
as follows: 

That the .«;tatements of Mr. Root, whether as to the origin of the war, its 
progress, or the methods by which it has been prosecuted, have been untrue. 

• That he has shown a desire not to investigate, and, on the other hand, to 
conceal the truth, touching the war and to shield the guilty, and by censorship 
and otherwise has largely succeeded. 

Since that time Mr. Root has occupied many positions of trust 
and responsibility, among them the position of Secretary of State 
and United States Senator from New York and president of the 
American Bar Association. His preeminent position as a citizen 
is a guaranty that nothing which we quote now from Mr. Storey 
in 1902 can possibly do any injury, but if he had had less promi¬ 
nence and power, and disappointed railroads and other special^ in¬ 
terests had so desired, the above-quoted report would be certainly 
as substantial a foundation upon which to build a structure of 
doubt as formidable, in any view of the situation, as is the one 
wdiich is now sought to be interposed against the nomination of 
Mr. Brandeis. 


74 


NOMINATION OF LOUIS D. BEANDEIS. 


The active life of the people, the bitterness and intensity of 
political, legal, and civic controversies have made many prominent 
men the object of attack from large sections of the people or some 
particular communities. Instances of this could be multiplied, but 
we do not care to take liberties with others’ names, preferring to 
let the illustration of one of the very distinguished members of the 
bar, which we have given, and who can not possibly be injured 
thereby, suffice. 

Since 1907 Mr. Brandeis has been the object of bitter attack from 
those interested in defeating his opposition to the transportation 
monopoly sought by the New York, New Haven & Hartford Bail- 
road Co. (620, 751, 615, 640, 499, 510) Before this time, his efforts 
in behalf of what he believed to be to the interests of the community 
had exposed him to the enmity of other public-ser\dce corporations, 
and the banking interests allied therewith (810, 613, 618). 

But.it was at the end of 1907 that the systematic efforts to dis¬ 
credit him began. This was done through inspiried news articles 
and editorials, and finally through extensive advertising (620, 640, 
664, 239). This was placed to some extent through Clarence W. 
Barron (134), the editor of a financial paper called the Boston News 
Bureau, and Wall Street Journal, and some of the advertisements 
were approved by Mr. Charles F. Choate, jr., the counsel for the 
railroad and a son of one of its directors (640, 643). This advertis¬ 
ing was put out under such headings as “ Brandeis the Bailroad 
Wrecker.” It was not the sporadic outburst of spite. It was a 
systematic policy of defamation to break down the power of his 
opposition, which was effective because of his righ repute and 
could be broken only by attacking his reputation. The method 
adopted was to spread the idea that he was not acting disinterestedly 
for the benefit of the community, but under pay and for hostile 
private interests (640, 660). This is of particular significance when 
considering the nature of the alleged bad reputation. It is not that 
he is unfaithful to his clients or false to the courts; it is that he 
is not entirely “trustworthy” (153), is “ruthless” in the attain¬ 
ment of his objects, and not “scrupulous” in the methods he 
adopts (271) ; that he works “under cover” (653) ; that he is not 
“straightforward” (611), and not always truthful, and sails under 
“false colors” (750). This was the very reputation which an 
extensive and skillful campaign was conducted to give him (620). 
The meaning of the witnesses is still further defined by their 
illustrations, namely, that of his being paid by Collier’s for ap¬ 
pearing for Grlavis (614, 269), and the false charge that he was 
knowingly acting for the New York, New Haven & Hartford Bail- 
road Co. in bring the Corbin suits against the New York & New 
England Bailroad Co. (415). 

The coincidence of the beginning of this alleged evil reputation 
with a systematic campaign to create it is well shown by the testi¬ 
mony of Mr. Peajbody, one of the hostile witnesses, who says that he 
has a wide acquaintance at the Boston bar, and for years has'been a 
member of the same club with Mr. Brandeis, and yeCthe first that he 
heard by way of criticism of Mr. Brandeis’s good faith was when he 
attacked the New Haven Bailroad Co. in 1907 (753), and this was an 
attack to which Mr. Peabody was personally opposed (751). 


NOMINATION OF LOUIS D. BEANDEIS. 


75 


This was an attack, as Mr. Storey says, upon people, many of whom 
exercised a very powerful influence, socially, politically, i id finan¬ 
cially, so that a man would not be in high favor with some of the 
best citizens of Boston who was engaged in exposing the shortcom¬ 
ings of these people (272). 

Outside of this small circle and the influences of the hostile cam¬ 
paign, Mr. Brandeis’s reputation is not only above reproach but is 
that of a man who is conspicuous for high standards of action, per¬ 
sonally and in his profession. 

With 38 years of practice in the Boston bar, Mr. Melvin O. Adams 
says of his reputation: 

^ If I may analyze it, as I observe it, there is a group of men of high standing, 
like Gen. Peabody, in the community, who are in the network of State Street, 
which is our financial street, who state and think that Mr. Brandeis is not 
straightforward in his practice. I think these opinions, when traced, run into 
some one of these pockets of more or less publicity, namely, the Lennox case, the 
United Shoe Machinery case, the wrecking of the New England—those allega¬ 
tions. That is a fair statement as to that group. On the other hand, there is a 
large body of the bar, who, coinciding with what I have said as to his being a 
very able lawyer, a man of profound learning, also believe that he is actuated 
by lofty purposes, is honest and trustworthy (766). 

Mr. Thomas J. Boynton, lately attorney general of Massachusetts, 
says : 

That reputation, so far as I know it, is good. Down to the time this appoint¬ 
ment was made I think the only thing that had ever come to my attention in 
any way refiecting upon Mr. Brandeis was certain printed matter circulated by 
the United Shoe Machinery Co. With that exception, I do not think I ever 
heard anything reflecting in any way upon his character as a man or as a 
lawyer (771). 

The testimony of Mr. French and Mr. Walker are cumulative on 
this point. 

Of his national reputation, Mr. Stephen S. Gregory, formerly pres¬ 
ident of the American Bar Association, says that “ his reputation is 
excellent as a lawyer of ability and character” (711). 

Hon. Newton D. Baker, Secretary of War, says that he knows Mr. 
Brandeis’s reputation among social wmrkers, and that among them he 
is regarded as not only the greatest lawyer of their group of aids but 
as a detached and spiritual and high-minded man (762). 

This is emphasized by a memorial in Mr. Brandeis’s favor signed 
by many well-known men (761). 

Mr. Whipple, already quoted, says: 

As a lawyer, Mr. Brandeis is able and learned. As a man, he is conscientious 
and high minded. The feature of his career which is the most striking and re¬ 
markable has been his unselfish and unswerving devotion to the social, moral, 
and industrial uplift of the lowly and less fortunate of our people. I believe 
that on the Supreme Bench of the United States he will exert a strong influence 
in establishing the ideals to which he has devoted his recent years (282). 

It is evident that the standing of Mr. Brandeis’s firm in the public 
esteem can not rise above his own. Mr. Whipple says that it is a 
reputable firm, generally so regarded, one of the leading firms of the 
city (285), one to which go men of superior excellence in their work 
in the Harvard Law School. 

Mr. Hutchins says that the firm is one of the high-standing firms of 
the city to which for 20 or 30 years a good many of the high-class 
men from Harvard have gone, and that it has done a large and varied 


76 


NOMINATION OF LOUIS D. BEANDEIS. 


business, dealing on terms of good fellowship and general respect 
with the entire bar (621). ^ 

Without going further into details it may be said that the testi¬ 
mony of Mr. French, Mr. Walker, and others convinces your com¬ 
mittee that the high standing of the law firm is not open to doubt. 

The unreality of the strictures upon Mr. Brandeis's reputation is - 
strikingly demonstrated by the treatment which has been accorded to 
him by some of the very men who now make these assertions. Among 
his critics are several of the overseers of Harvard College and mem¬ 
bers of that corporation. They are charged with the duty of main¬ 
taining the high moral standard of that institution, and of putting 
in places of prominence onl}^ those whose example will be elevating 
to the student body. Year after year these men have appointed Mr. 
Brandeis a member of the visiting committee to the Harvard Law 
School—a committee made up of such men as Mr. Justice Hughes, of 
the Supreme Court of the United States; Mr. Justice Loring, of the 
Supreme Court of Massachusetts; Mr. Justice Swayze, of the Su¬ 
preme Court of New Jersey; Hon. James T. Mitchell, some time chief 
justice of Pennsylvania; Hon. Robert Grant, judge of the probate 
court in Boston; Hon. Henry L. Stimpson, some time Secretary of 
War; James C. Carter, leader of the American bar; Charles C. Bea¬ 
man, member of the distinguished firm of Evarts, Choate & Beaman, 
a partner of Joseph E. Choate, lately ambassador to Great Britain; 
Francis C. Lowell. United States judge for Massachusetts; Charles 
J. Bonaparte, lately Attorney General; Jeremiah Smith, formerly 
justice of the Supreme Court of New Hampshire and one of its most 
distinguished citizens and professor in the law school after 1891; 
Charles S. Fairchild, formerly Secretary of the Treasury under Mr. 
Cleveland; Charles P. Greenough, formerly president of the Boston 
Bar Association; Robert M. Morse, one of the leaders at the Boston 
bar for the last 40 years; John Noble, clerk of the Supreme Judicial 
Court of Massachusetts; James J. Storrow, Edmund Wetmore, Henry 
W. Putnam, William Rand, George Putnam, Langdon P. Marvin, 
and Chandler P. Anderson. 

Some of the members of the board of overseers of Harvard College, 
which has appointed Mr. Brandeis a member of the visiting com¬ 
mittee to the law school, are the following: 

Henry Cabot Lodge, Senator from Massachusetts; George F. Hoar, 
formerly Senator from Massachusetts; Roger Wolcott, for^merly gov¬ 
ernor of Massachusetts; Moorfield Storey, one of the protestants; 
Francis C. Lowell, United States circuit judge, cousin and former 
partner of A. Lawrence Lowell; John D. Long, formerly governor of 
Massachusetts and Secretary of the Navy; William C. Loring, jus¬ 
tice Supreme Judicial Court of Massachuetts; Winslow Warren, col¬ 
lector of port under Mr. Cleveland, father of Charles Warren. As¬ 
sistant Attorney General of the United States; Frederick P. Fish, 
a protestant; John Noble, clerk of Supreme Judicial Court of Mas¬ 
sachuetts and father of a protestant; Robert Grant, judge of the 
probate court, Suffolk County, Mass.; Robert M. Morse, one of the 
leaders at the Boston bar for the last 40 years; Solomon Lincoln, 
formerly a leader of the Boston bar; Moses Williams, a protestant; 
George O. Shattuck. formerly a leader at the Boston bar; James J. 
Storrow, Charles R. Codman, Henry W. Putnam, Leverett Salton- 


NOMINATION OF LOUIS D. BEANDEIS. 77 

stall, Edmund Wetmore, Louis A. Frothingliam, and George Wig- 
gels worth. 

It will not do to oppose the nomination of a man like Mr. Brandeis 
and then, after a complete investigation, admitting that the charges 
are not supported, ask that the nomination be rejected because of the 
charges rather than of their truth. This would be an injustice to 
the nominee and to the court, and would be out of line with that sense 
of justice which pervades all classes of people. Having failed in the 
charges and admitting the eminent ability of the appointee, it would 
be the manly thing to concede the evident error in making the 
charges and ask for a confirmation. 

APPENDIX. 


Hon. William B. Chilton, 

United States Senator, Washington, D. C. 

Dear Mr. Chilton : I am venturing to write you the impressions of one who 
has, come into this community from without and may perhaps have been able to 
judge Mr. Brandeis more fairly than it seems to me he is judged here. His 
friends, as it seems to me, make a great mistake in urging as his chief qualifi¬ 
cation his views upon social questions and the eminent services he has per¬ 
formed in the public interest. Important as these matters are, their importance 
does not lie immediately in the direction of qualification for the bench. What 
is not so generally known is that Mr. Brandeis is in very truth a very great 
lawyer. At the beginning of his career his article in the Harvard Law Review 
on the right of privacy did nothing less than add a chapter to our law. In 
spite of the reluctance of many courts to accept this, it has steadily made its 
way, until now it has a growing preponderance in its favor. All the cases upon 
this subject concur in attributing the origin of the doctrine to Mr. Brandeis’s 
paper. The promise thus given has been amply fulfilled. One might instance 
the revolution which his brief in Muller v. Oregon achieved in the matter of 
arguing cases involving the constitutionality of social legislation. The real 
point here is not so much his advocacy of these statutes as the breadth of per¬ 
ception and the remarkable legal insight which enable him to perceive the 
proiR?!* mode of presenting such a question. Since I came to Cambridge, not 
quite six years ago, I have had many opportunities of observing Mr. Brandeis, 
and do not hesitate to say that he is one of the great lawyers of the country. 
So far as sheer legal ability is concerned, he will rank with the best who have 
sat upon the bench of the Supreme Court. 

As to the charge that he is lacking in judicial temperament and would be 
a partisan upon the bench, it seems to me that those who urge this know 
very little about him and base their opinions upon newspaper accounts of the 
vigorous battles which he has fought as an advocate. Of course the news¬ 
papers are not interested in the purely legal side of his activities. Only those 
causes involving more or less sensational public interest attract general notice. 
In these causes he has appeared as a vigorous and sometimes radical advocate. 
But those who conceive him disqualified because of his advocacy of those cases 
make the same mistake as is made by others who have so often objected to 
putting sound and well-qualified lawyers upon the bench because they had often 
been engaged in advocating the cause of great corporate interests. Moreover 
it is well proved by experience that a great advocate may easily become a great 
judge also. A notable example is to be seen in the case of Sir Henry Hawkins, 
the greatest advocate probably of his generation. When he was appointed to 
the bench fear was expressed that he would carry his habits of advocacy into 
the judicial station. On the other hand, when he retired it was universally 
acknowledged that he had been a fair and sound trial judge in the very class 
of cases in which he had so often been engaged in the forum. One might 
instance also the late Lord Russell, easily the greatest advocate of his time, 
who filled aJC'-nitably the post of Chief Justice of England. In the* case of 
Mr. Brandeis flie very qualities that have made his advocacy so effective would. 



78 


NOMINATION OF LOUIS D. BEANDEIS. 


I think, make his study of a controversy as a judge equally eifective in achiev¬ 
ing a sound legal result. 

As to the charges of unprofessional conduct which are so much in the air 
iiere, I have no first-hand information. But I may call your attention to one 
circumstanca which seems to me conclusive. At least from 1910 (when 1 
came here) to the present Mr. Brandeis has been one of the committee ap¬ 
pointed by the board of overseers of Harvard University to visit the law school. 
That is, the board of overseers have appointed him as one of a committee to 
inspect the work of teachers and students, and to advise as to the conduct of 
the school. At different times between 1910 and the present he has been asso¬ 
ciated on this committee with Mr. Justice Hughes, of the Supreme Court of 
the United States; Mr. Justice Loring, of the Supreme Court of Massachusetts; 
Mr. Justice Swayze, of the Supreme Court of New Jersey; Hon. James T. 
Mitchell, sometime cliief justice of Pennsylvania; Hon. Robert Grant, judge 
of the probate court in Boston, and Hon Henry L. Stimson, sometime Secre¬ 
tary of War. During this period, in which Mr* Brandeis has been reappointed 
from time to time to serve with lawyers of the caliber of those just enumerated, 
the following lawyers have been members of tho board of overseers by whom 
he has been so reappointed: Hon. Henry Cabot Lodge, United States Senator 
from Massachusetts; the late John D. Long; Mr. Justice Loring, of the Su¬ 
preme Court of Ma.ssachusetts; Hon. James T. Mitchell, sometime chief justice 
of Pennsylvania; Mr. Justice Swayze, of the Supreme Court of New Jersey; 
William A. Gaston, Esq., of the Boston bar; Robert P. Herrick, Esq., of the 
Boston bar; Frederick P. Fish, Esq., of the Boston bar; Judge Robert Grant; 
and L. A. Frothingham, Esq., of the Boston bar. It can not be that these 
gentlemen would have appointed him along with such colleagues to a position 
of such importance had they then believed him deficient in professional honor 
or guilty of professional misconduct. Nor can it be asserted that the eminent 
members of the Boston bar who participated in the appointment and reap¬ 
pointment were ignorant of what is now charged, for these charges are not 
new. Conceding, as one must, the absolute sincerity of these gentlemen one 
is driven to the conclusion that the objections now urged against Mr. Brandeis 
at the Boston bar by his colleagues are the unconscious product of fear of his 
political views and aversion to his social and public activities. 

Yours, very truly, 

Roscoe Pound. 


Somerset Club, 
Boston, March 21, 1916. 

To the Chairman of the Senate Judiciary Subcommittee, 

WashiiKjton, D. C. 

Dear Sir : Having followed with interest the report of evidence submitted to 
your committee in regard to the President’s nomination of Mr. Brandeis for 
the Supreme Court vacancy, I find myself impelled, as a personal friend of his 
early partner, Mr. Warren, and as one of a now older group of Boston and 
Harvard men who have watched Mr. Brandeis’s legal career develop from its 
commencement, in usefulness and distinction—to say that while well acquainted 
with the views of those who now oppose his confirmation and giving weight in 
other matters to the opinion of some among them, I believe them to be preju¬ 
diced and wrong regarding this. 

Mr. Brandeis is a man of keen intelligence, but high ideals, possessing also 
a rare creative quality of imagination tha., combined with fearless courage of 
convictions, has brought him at times, to the public benefit, in conflict with 
vested interests and established points of view. We need such a man as this 
on that high bench to keep it open to the ever-changing thought and senti¬ 
ment of the world and Nation, recognizing these in their changes and passing 
judgment on them through the decisions that it renders. 

I trust accordingly, for the country’s sake, that the Senate may confirn his 
nomination. And I remain, with respect, 

Very faithfully, yours, 

George B. Doer. 



NOMINATION OF LOUIS D. BEANDEIS. 


79 


The Commonwealth of Massachusetts, 

Public Service Commission, 

Febf'uary 26, 1916, 

Hon. William E. Chilton, 

Chairman Subcommittee on Brandeis Appointment, 

United Statea Senate, Washington, D. C. 

Dear Sir : I have followed the press accounts of the hearings before your 
subcommittee in the Brandeis matter with a great deal of interest. After it 
has probed his record to the bottom, as I hope it will, I feel very sure that the 
committee will favor his confirmation. My confidence does not rest upon what 
others have told me about him, but upon personal knowledge. 

Before I became a member of the Public Service Commission of Massa¬ 
chusetts I was, for some years, secretary of an organization in Boston known 
as the Public Franchise League. It was made up of a group of business and 
professional men of standing, who thought that they could be of service as citi¬ 
zens by making a disinterested study of some of the important questions that 
arise from time to time in regard to the public-service corporations of every 
community and by presenting the results of their study to the public bodies 
which have to deal with these questions. Mr Brandeis was one of the members 
of this league and I saw a great deal of him and worked with him intimately. 

If your committee would care to have it, I should be glad to furnish you 
with a statement, in some detail, of w'hat this league did in connection with 
street railway, railroad, gas, and electric matters, for its work was, in my 
judgment, of great public importance and value. It would also help you, I 
think, to understand the attitude which Mr. Brandeis has taken upon such 
public questions and the antagonisms which have been aroused. As you prob¬ 
ably appreciate, it is impossible in a conservative community like New England 
for a man to speak plainly in the public interest upon such questions (es¬ 
pecially if he also speaks forcefully) without creating enemies, some of whom 
are sincere but influenced by a prejudice which is often quite unconscious. 

Louis D. Brandeis is a man of very unusual ability and power and a man of 
great moral courage. Furthermore, he is an indefatigable worker and student. 
The impression which some have that he is merely a brilliant advocate and 
addicted to reckless and extreme statements is not warranted. I have never 
known him, in any matter in which I was associated with him, to take a'posi¬ 
tion before he was well grounded in the facts. This was particularly true in 
the New Haven Railroad matter. That he is honest and sincere I think no one 
who really knows him will doubt. I have no hesitation in expressing the 
opinion that he will make a very valuable addition to the Supreme Court, and 
I believe that you will feel the same after you have completed your investiga¬ 
tion. My own feeling is illustrated by the fact that since I have been a mem¬ 
ber of this commission I have frequently consulted with him upon important 
matters. 

It is, I think, hardly necessary to say tliat this letter is not an official com¬ 
munication, but the expression of my personal views. 

Yours, very truly, Joseph D. Eastmen. 

February 16, 1916, 

Hon. William E. Chilton, 

Chairman Subcommittee, United States Senate, 

Washington, D. C. 

Dear Sir : It is my desire to record my indorsement of Louis D. Brandeis, who 
is nominated as Associate Justice of ihe Supreme Court of the United States. 

" I have been a lawyer in active practice in the city of Boston more than 21 
years and have been "district attorney for more than 6 years. Previous to that 
time I served as civil service commissioner for the Commonwealth ^or 4 years 
and have held other nonelective public positions. 

I want to speak of Mr. Brandeis’s reputation at the Suffolk bar. I note that, 
according to the press, a gentleman recently claimed to represent the bar asso¬ 
ciation of the city of Boston, of which I have been a member for many years. 
While as an officer he may have certain rights, or some committee may have 
given him authority, I want to call your attention to the fact that no meeting 
of the bar association has been held and the matter of Mr. Brandeis s indorse¬ 
ment has never neen considered by the body as a whole. 

I believe that in my private practice and in my official capacity I have been 
in a position to know much about the bar and the standing of its members. 


80 


NOMINATION OF LOUIS D. BEANDEIS. 


Few men come in contact with more men in active practice, and, as you 
will appreciate, it is inevitable that the estimate of members of tlie bar, one"to¬ 
ward the other, soon becomes known and a matter of current gossip, cidticism, 
or praise. I liave nev^er heard the slightest criticism of Mr. Brandeis, but, on 
the contrary, he has always been admired and looked upon as one of our most 
brilliant trial lawyers and one of the best jurists at the bar, learned in the law, 
and skilled in its practice. I never have heard the slightest intimation that he 
was anything but honest and upright, as he is capable and energetic. He has 
never hesitated to take a strong public position on public matters and it is 
never difficult to place him. 

He seems to have been a man who always had an ambition to do something 
to better the conditions of the people. 

It is not unusual for a man of his large experience and long years of turmoil 
in the courts and out to have displeased many, and perhaps offended them very 
deeply, and this is true of any man of his years and of his activity. 

I am confident that if a vote of the Boston Bar Association were to be taken, 
or if a vote of the members practicing at the Suffolk bar, many of whom are not 
members of the association, was to be had, Mr. Brandeis would receive almost 
a unanimous vote, and, regardless of individual feelings, the lawyers would in¬ 
dorse him as an honest man, well fitted by training and experience to hold a 
place on the bench of the Supreme Court of the United States. 

I have seen in the press a protest against the appointment of Mr. Brandeis 
.signed by some members of the Suffolk bar. These are all estimable men, but 
almost without exception men of one class and one kind. I see there few names 
of the active trial members of the bar. 1 see there few names of men who have 
had to struggle to attain success. I see there few names of men engaged in 
general practice. This is not to be taken as any refiection upon these men, but 
merely as calling your attention to the fact that the list of names which I saw 
published was far from representative of the Boston bar, where we have all 
races and creeds, whose opinion is worth while and whose standing is beyond 
question and who are perhaps much nearer to the people than those in the list 
I have mentioned. 

I do not want to accuse anyone in particular, but I think I express the no¬ 
tion of the majority of the people of Boston when I say that there is a feeling 
that* tlie underlying opposition to Mr.*Brandeis is more because he is a Jew 
than that he is unfit by reason of anything he has ever done. I know that 
your committee will have this in mind and that such a thought and such a 
reason will have no harbor and no merit in your honest consideration of this 
case. 


Very truly, yours, 


Joseph C. Pelletier. 


AVasittngton, D. C., February 7, 1916. 

My Dear Senator Walsh : It seems to me a public duty to write to you in 
regard to the appointment of Mr. I.ouis D. Brandeis, of Massachusetts, as a 
Justice of the Supreme Court of the United States. During the two years I 
was governor of Massachusetts, and in the years preceding them, I had re¬ 
peated occasions to observe this man and his high ideals and common sense; 
his wide practical knowledge of the law; his extensive understanding of the 
business, economic, and social problems of our time; his sound judgment and 
ardent devotion to the public welfare. As you know, we are justly proud of 
the number and ability of our public-spirited men in Massachusetts, and it 
would be difficult to point out a better example of generous, unpaid, diligent, 
constructive work upon the side of the public interests than that which has 
been done by Mr. Brandeis. 

On numerous occasions, beginning at least as far back as 1896, whenever 
the creation and control of the Boston subways was before the legislature, he 
has been, as a private citizen, a tireless and successful leader against powerful 
opposition in support of the principle that the value of the subway franchises 
should be kept for the public after giving to the operating company a reason¬ 
able return for services rendered. He declined to accept any compensation for 
his long-continued and very valuable constructive work during all these years 
in this cause. 

IVhen the gas situation in Boston appeared to be in a hopeless condition he 
urged, again as a private citizen, the plan by which the dividends of the gas 
company were made dependent upon the price charged for gas to the consumers. 




NOMINATION OF LOUIS D. BKANDEIS. 


81 


This has resulted in a reduction of the price of gas to the public and in a 
corresponding increase in dividends to stockholders of the company. 

When the insurance investigations occurred he devised and successfully 
pressed for legislation in Massachusetts permitting, for the first time in this 
country, our savings banks to issue small-payment life insurance policies. This 
has resulted in an opportunity for our working people to insure themselves at 
much lower rates than were being charged by the industrial insurance com¬ 
panies, and has led these companies to make lower rates. To my personal 
knowledge Mr. Brandeis has given annually thousands of dollars to further 
the work of bringing to the working people of our State this opportunity for 
less costly insurance. For more than 20 years prior to the Massachusetts 
law there had been no reduction in the cost of industrial insurance, but since 
the passage of the law so successfully advocated by Mr. Brandeis in Massa¬ 
chusetts the premiums of the old-line companies have been reduced, on an 
average, 20 per cent, thus saving to the people of this country, insured in in¬ 
dustrial companies, from $15,000,000 to $20,000,000 annually, and to the people 
of Massachusetts about $1,000,000. 

The system of arbitration which he devised for the New York garment work¬ 
ers is an equally significant example of his judicial qualities and his public 
service in other fields. 

In 1906 the people of New England began to awaken to the fact that the 
New Haven Railroad was apparently successfully seeking to create a New 
England transportation monopoly. The event which focused public opinion 
most sharply was the acquisition of the controlling interest in the Boston & 
Maine Railroad. Mr. Brandeis, again as a private citizen, commenced an 
exhaustive study of this railroad problem and made public an analysis of the 
financial condition of the New Haven Railroad, pointing out, for the first time, 
to the people of New England the inevitable disaster sure to result from the 
course of mismanagement and waste then being pursued. His advice was 
unheeded, his warning derided, and his motives impugned. But time has 
shown that his conclusions were based upon carefully ascertained facts, to 
which he applied the clearest and most cogent reasoning power. Three years 
ago what he prophesied nine years ago became apparent to all and is now a 
matter of public knowledge and of record in Senate documents and elsewhere. 

I instance these among many public services covering a long period of years 
as illustrative of the work done as a private citizen in the service of the public 
interest without compensation, at a large expenditure of his own time in the 
midst of a very active professional life. 

Indeed, in extensive acquaintance with public men, I know of no one who 
without emolument or honors of public office has given so much of the valuable 
constructive service of a trained lawyer to the public weal as Mr. Brandeis. 

I have written mainly of Mr. Brandeis’s public work for the past 20 years, 
but I would not have you overlook that, before he engaged in these public 
activities out of which have grown results for which he is entitled to the 
gratitude of the American people, he had achieved already a position at the Mas¬ 
sachusetts bar which would well have warranted his appointment to the Supreme 
Court at the age of 40. He is a great lawyer and a great citizen. Is not this 
a combination for a great judge? 

Were I not hastening on a far journey I would seek a personal interview 
with the committee, but failing such opportunity I venture to emphasize and 
perhaps to repeat some of the things I said to you orally; and I hope that you 
will communicate them to your committee, together with my very best respects. 

Very sincerely, yours, 


David I. Walsh. 


Hon. Thomas J. Walsh, 

The Senate, Washington, D. C. 


February 1, 1916. 

To the Members of the Judiciary Committee 

OF THE United States Senate. 

Gentlemen : I have practiced as a member of the Boston bar ever since the 
admission of Louis D. Brandeis. I have known him well and watched him 
with interest through all these years, though not connected with him in any 


Ex. Rept. 2, pt. 1, 64-1-6 




82 


NOMINATION OF LOUIS D. BRANDEIS. 


way. If coiilirmecl by the Senate, as I have no doubt he will be, I am satisfied 
he will be an acquisition of the highest value to the Supreme Court. His mind 
is clear, analytic, exact, incisive, and sound. There is in my acquaintance no 
surer, saner, more exact and reliable mental machinery than is found in him. 
I know of no lawyer anywhere who could better assist in the correct solution 
and conclusion of the involved legal propositions coming before our highest 
court than Mr. Brandeis. He is versed in nearly all departments of the law. He 
is acquainted with all sections of the country. He knows all human conditions 
and has regard for them. His purpose is noble and untrammeled. His spirit 
and habit are modest, considerate, and kind. He is never obtrusive, but he 
never hesitates to take the consequences of his convictions. He accomplishes 
an enormous amount of work in a day, and he is ripe in wisdom, sense, and 


courage. 

Mr. Brandeis is thoroughly judicial in temperament and habit. He is never 
hasty or extreme, but is calm, mathematical, incisive, and careful in his ready 
reasoning. His judicial analysis and conclusion in the numerous public issues 
with which he has been connected are often taken as controversial, because he 
sees the wrong sooner than others do, and then lays it bare to the world’s in¬ 
spection in the succinct, clear, unanswerable terms which the courts employ. 
His words are few; he never reiterates. He enunciates propositions which the 
courts and laymen adopt. 

I have never known Brandeis to be assailed, except for turning on the truth. 
For instance, in the conduct of the New York, New Haven & Hartford Rail¬ 
road all the Attorneys General, district attorneys, and administrators of 
Governments in the three States traversed by the railroad knew for years 
that the "corporation was proceeding ultra vires and regardless of law. By 
enormous expenditures it quieted agitation, and New England thought it well 
enough for that railroad to be superior to law. Finally Mr. Brandeis alone 
made plain that its unlawful monopoly and wasteful aggrandizement were 
bringing financial ruin as well as moral abasement; that from $100,000,000 to 
$250,000,000 had been lost in its unlawful courses; and that all would yet be 
lost unless the policy were changed. The stockholders of that corporation are 
to-day indebted to Mr. Brandeis alone for effectuating the halt and turning 
about which have saved them whatever value they have left in the New Haven 
Railroad. For his stand against ruination, voluntary to be sure, some writers, 
like the editor of the Boston News Bureau, who received $104,000 from the 
railroad company to place among newspapers for advertising, have defamed 
Mr. Brandeis shamefully and relentlessly, claiming he ruined the credit of the 
road, whereas he saved the remnants of its value for restoration by a law-abid¬ 
ing management. 

The Supreme Court and the country, now that the opportunity is given, 
should have the benefit of this plain, sincere, and remarkable personality in 
the position for which he is most signally qualified. Massachusetts could" not 
make a better contribution to any department of the Government. 

Respectfully, yours. 


A. S. Hall. 


Febeuary 18, 1916. 

Senator William R. Chilton, 

Chairman Suhcommittee, United States Senate, 

Washington, D. C. 

My Dear Senator : This letter is written to urge the confirmation of Louis D. 
Brandeis as Associate Justice of the Supreme Court of the United States'. 

To identify myself to your committee, in order that you may know what 
opportunity I have had to pass upon the qualifications of Mr. Brandeis, I 
would say that I have been a member of the bar, practicing in Boston, for the 
past 18 years; in politics I am a Democrat and have served in the Boston city 
council, Massachusetts House of Representatives, and the Massachusetts Seri¬ 
ate, and have been register of deeds for Suffolk County since 1907. I was 
president of the democratic city committee of Boston from 1902 to 1905, in¬ 
clusive, and a vice president of the democratic State committee for'several 
years. I was a delegate to the National Democratic Convention at St. Louis 
in 1904 and an alternate at the Democratic National Convention in Baltimore 
in 1912. 

I first met Mr. Brandeis 20 years ago, when I was a delegate to the Boston 
Municipal League, an organization composed of representatives from many 








NOMINATION OF LOUIS D. BEANDEIS. 


83 


improvement societies and other bodies who were interested in improving the 
civic welfare of the city and obtaining better laws for the benefit of the whole 
people and opposed to any privileged class, political or otherwise. 

I recall that Mr. Brandeis was counsel for the league and had done consid¬ 
erable work for the organization, and I remember distinctly that it was a great 
surprise to me as a law student at that time when Mr. Brandei^^ presented to 
the league a receipted bill for $500, with his compliments, and declined to.receive 
any compensation, whatever or to make any use of F' b appropriation that had 
been made for counsel fees. 

On many occasions since that time I know that Mr. Brandeis has acted in 
behalf of the public, and has represented civic and charitable organizations 
without compensation. I have seen him in action before legislative committees 
and at great gatherings of citizens discussing public questions. I have seen 
him in court' in the Irial of cases and I have never known, a man that possessed 
a keener or more logical mind. I consider him the equal, if not the superior, 
of any man at the bar in this part of the country. 

At a meeting of the Boston City Club about two years ago Mr. Brandeis 
made the ablest presentation of an antitrust argument that has ever been heard 
in this city, and it was the unanimous opinion of the members of aL shades of 
political opinion that no more scholarly or logical address had been made at 
the club during its history, and our speakers have included Presidents 'Wilson 
and Taft, Hon. William J. Bryan, Hon, Champ Clark, many United States 
Senators and Congressmen, Cabinet officers, the governors of many States, 
college professors, eminent pulpit orators, and many leading lawyers of the 
United States, as well as members of the English Parliament. 

At the dinner that preceded this address at the City Club brief speeches com¬ 
plimentary of Mr. Brandeis were made by representative citizens of Boston, 
and as a vice president of the club I was asked to speak. I said that I agreed 
with all the speakers, and with the entire community in fact, that Mr. Brandeis 
was an exceedingly able lawyer and a good citizen, but that I had been trying 
for many years to make up my mind whether he was a deep-dyed schemer, who 
had been carefully laying his plans to become mayor of Boston Oi governor of 
Massachusetts, or whether he was simply an honest man. 

I felt that the time had come to make a decision, and, inasmuch as he had 
stood the test for nearly 20 years and had not declared himself a candidate 
for office, I had come to the conclusion that he was-simply an honest man, 
sincere in all his endeavors in behalf of the common people, and that he had 
absolutely no ulterior motive in devoting his magnificent talent on many occa¬ 
sions to the public without compensation. I still adhere to that opinion, and 
believe that his confirmation would add great strength to the Supreme Court. 

Many a man is loved for the enemies he has made, and I believe that Mr. 
Brandeis is to be congratulated for some of the enemies he has made, although 
there may be a few of his opponents who sincerely believe his confirmation 
unwise, but I think they do it because they can not see outside of their own 
sphere of infiuence and because Mr. Brandeis has attacked their interests. 

These men, however, do not represent the general opinion of this community, 
and I have no doubt that a poll of the citizens of Boston would be overwhelm¬ 
ingly in favor of the confirmation of Mr. Brandeis. 

Respectfully, yours. 


W. T. A. Fitzgerald, 


[Lionel Norman, attorney and counselor at law, 200 Devonshire Street.] 

Boston, February 19, 1916. 

Hon. William E. Chilton, 

United States Senate, Washington, D. C. 

Dear Sir: I understand that you are chairman of the subcommittee having 
the matter of the confirmation of Louis D. Brandeis for the Supreme Court of 
the United States under consideration. While my law practice in the past has 
not been an extensive one, still I have had more or less trust matters, involving 
large sums of money, to attend to, and in this connection have had some contact 
with Mr. Brandeis’s firm. One case involved a matter of $168,000, which was 
referred to IVlr, Brandeis personally. The matter was dealt with in a manner 
showing great integrity and consideration, when it might easily have been 
dragged out for years and cost the estate a great deal of money. The fee 



84 


NOMINATION OF LOUIS D. BRANDEIS. 


charged to the estate and the whole attitude in the premises made a very deep 
and favorable impression upon me. 

Outside of the few hereabouts in Boston who represent what we call “ God’s 
own anointed,” but who do not always practice God’s precepts, Mr. Brandeis 
is regarded as a man of very high principles as well as of very great ability 
and deep legal learning. Possibly, if there is any criticism of him which I 
might be inclined to make, it would be that instead of being overpractical, as 
he has been accused of, he is too idealistic. 

Yours, very truly, 

Lionel Norman. 


Boston, February 1, 1916. 

Senator W. E. Chilton, 

Washington, D. C. 

Dear Sir : I see from the daily papers that you are the chairman of the 
Senate committee which is to inquire and report as to the advisability of con¬ 
firming the nomination of Mr. Brandeis to fill the vacancy in the Supreme Court. 

Having known Mr. Brandeis as a student at the Harvard Law School in 1876, 
watched his career as a lawyer, and having lived in Boston for the past 12 
years, I desire to urge your committee to recommend his confirmation. 

Mr. Brandeis was certainly one of the leading men, if not the leading man, 
in his class at Harvard, and since his admission to the bar in Boston has grad¬ 
ually forged his way to the front until he is now, and for several years has 
been, recognized as one of the ablest lawyers in this city. His standing as a 
man and as a lawyer is the best, but like all leading men in his profession has 
necessarily made some enemies in attaining his present position. He is a law¬ 
yer who thinks for himself and is not afraid to express his convictions, and who 
realizes that the law must grow to fit existing conditions rather than under¬ 
take to apply precedents which have arisen out of conditions which no longer 
exist to present-day problems, 

I hope you will find it consistent with your duty as a Senator to vote for and 
urge his confirmation as a member of the Supreme Court, as I confidently be¬ 
lieve that the appointment of a man of his ability and character to the Supreme 
Court at this time is both wise and judicious. 

Very truly, yours. 


J. M. Head. 


February 23. 1916. 


Hon. William E. Chilton, 

United States Senate, Washington, D. C. 

Dear Sir: I address you as chairman of the subcommittee on the question 
of confirming the nomination of Louis D. Brandeis, Esq., to the United States 
Supreme Court. If it is proper at this time to make a statement of opinion, 
as many eminent persons have recently done pending the investigation, let 
me say that T was in the law school with Mr. Brandeis and knew him well, 
and have kept up a friendship with him ever since. 

Of late years I have retired from active practice and wholly withdrawn 
the last four years. I have, however, followed his course with great interest, 
have the highest opinion of his intellectual and moral qualities, and would not 
hesitate to entrust my affairs in his hands, feeling sure that if I did so he would 
look after them with the greatest intelligence and loyalty, and I believe his 
large knowledge of sociological questions would be of distinct benefit to the 
».q)reme Court. Believe me. 

Respectfully, yours. 


Richard H. Dana. 


February 16, 1916. 

Hon. William E. Chilton, 

United States Senate, Chairman Subcommittee, 

Washington, D. C. 

Dear Sir: T am glad to support the nomination of Louis D. Brandeis I 
believe that he is an accomplished, able lawyer; that he has been zealous and 
faithful in his office as attorney; that he is in every way trustworthy and 
reliable and eminently qualified for the office of justice of the Supreme Court 
of the United States. 

Very truly, yours, 


John W. Cummings. 








NOMINATION OF LOUIS D. BRANDEIS. 


85 


COPY OF RESOLUTIONS ADOPTED BY TAUNTON BAR ASSOCIATION. 

[Prepared by Silas D. Reed and Louis Swig.] 

Whereas the due consideration and formal expression of the Bar Association of 
the City of Taunton is proper and becoming upon such subjects as may 
specially and intimately concern the profession of the law, the said Bar Asso¬ 
ciation of the City of Taunton at a special meeting and after due notice, in 
which was included reference to the subject of these resolutions— 

Resolved, That it unqualifiedly and unreservedly indorses Louis D. Brandeis, 
Ksq., of Boston, for appointment to the Supreme Bench of the United States. 
We regard that Mr. Brandeis’s learning in the law, his training in its science, 
and his wide and reputable experience with men and affairs, eminently and bo 
comingly qualify him for the honorable and learned service demanded of the 
justices of the Supreme Bench. We also voice the opinion that Mr. Brandeis 
eminently represents the spirit of the times and the democracy of the age. 
Popular government has a right to expect that such expression be represente<l 
in the judiciary as well as in the executive and legislative: Be it further 
Resolved, That an attested copy of these resolutions be sent by the secretary 
of the association to the Senate of the United States, and that they be entered 
upon the records of the association. 


February 16, 1916. 

Hon. William E. Chilton, 

United States Senate, Chairman Subcommittee, 

Washington, D. C. 

Dear Sib: I hope that the nomination of'Mr. Louis D. Brandeis to the office 
of Justice of the Supreme Court of the United States will be confirmed. He is 
an able lawyer in good standing, and he has the confidence of the community. 
Respectfully, yours, 

Charles R. Cummings. 


February 26, 1915. 

Senator William E. Chilton, 

Subcommittee, United States Senate, Washington, D. C. 

Dear Sir: Apropos of the appointment of Mr. Louis D. Brandeis, of Boston, 
for Associate Justice of the United States Supreme Court, I feel that I should 
be remiss in my duty as a citizen of this Commonwealth were I not to say at 
least a word of commendation and assist the good cause so well begun by His 
Excellency the President. 

I have known Mr. Brandeis for 30 years and have had ample opportunity 
to study him at close range. Having been a public servant, in that I served in 
the governor’s council several terms, and w’as lieutenant governor of the Com¬ 
monwealth of Massachusetts, I feel qualified to judge of the pulse of the people 
with regard to public officers. Consequently, I feel safe in sayuig that the 
appointment is one of the greatest acts which the President has done yet, to 
show that he intends to have as servants of the great American public, men who 
really will serve the public. The general public feels that no wiser move for 
the advancement and behalf of the so-called common people has yet been made 
by His Excellency. 

Again I beg to state that I heartily indorse the appointment, and trust that 
no petty opposition arising from the disgruntled opponents whom Mr. Brandeis 
has unmercifully beaten in litigation will stand in the path of so worthy an 
appointee. 

Sincerely, yours, 

F. P. Barry. 


February 10, 1916. 

Hon. William E. Chilton, 

United States Senate, Washington, D. C. 

Dear Sir: This letter is intended as an indorsement of Louis D. Brandeis, 
who has been nominated as Associate Justice of the Supreme Court of the 

United States. . ^ i 

I may be identified as a lawyer in practice in Boston for 3o years and more, 
who is and has been a Republican, and who was United States attorney for 





8G 


NOMINATION OF LOUIS D. BEANDEIS. 


this district in 1905-6, resigning then by choice and not by request while there 
was a liepublican administration at Washington. , x i 

I have known Mr. Brandeis since he was called to the bar and I became then 
and have remained through the continuing years his friend and admirer. 

I have differed from him in many questions of politics and policy. 

I do not recall that I have ever been associated with him in legal matters 
and causes, but I am sure he has many times represented interests which were 
adverse to those for which I appeared. 

I have naturally known many men and many lawyers, but he to me seems 
supereminent in so ordering his life that with his splendid^ mental equipment 
and his great acquisition of learning there were always time and energy to 
recognize and pay his obligation to the State and the people as he in his vision 
saw it. 

Of course, one can not assert that he has high judicial qualities without a 
trial, but of such as he great judges have been made, and therefore I think he 
should be confirmed. I am, 

Very respectfully, yours, 

Melvin O. Adams. 


February 24, 1916. 

William E. Chilton, Esq., 

Chairman of Subcommittee of the United States Senate, 

Washington, D. C. 

Dear Sir : I have read with dismay the press reports of the testimony given 
by Moorefield Storey and Hollis R. Bailey before the subcommittee of the Senate 
regarding Mr. Brandeis. In view of my knowledge of Mr. Brandeis it did not 
seem to me possible that these men and others would unite in an effort to pre¬ 
vent his appointment to the Supreme Court and to go to the limits they have 
gone in maligning him. I am thoroughly convinced that the ring behind this 
fierce and totally unwarranted opposition to Mr. Brandeis are the representa¬ 
tives of predatory wealth and vested interests, and those who are not directly 
the representatives of these interests have been influenced in their course by 
these interests. 

My familiarity with conditions in Boston, where I have lived all my life 
and where I have actively practiced law for more than 15 years, convinces me 
that this chain of men and interests opposing Mr. Brandeis has been forged 
together from links which have been closely united for generations in this 
Commonwealth. These men think more or less alike and have a common pur¬ 
pose. Their thoughts and purposes have been in direct conflict with Mr. 
Brandeis’s thoughts and in direct opposition to the purposes which Mr. Bran¬ 
deis has made the precepts of his life. The present opposition to him is due 
entirely to the fact that he has* been a vigorous opponent of their interests 
and that he has laid bare their business methods in a way which did not put them 
in any very enviable light. It is now their purpose “ to get back ” at him, 
and that weight should be given to their testimony (especially in so far as 
their testimony merely gives their opinions, and that is all the testimony seems 
to amount to) as would be given to anyone’s testimony who has been injured 
and who has thereby become vindictive. 

Their opinions of Mr. Brandeis are entirely unfounded and their testimony 
as to his standing and reputation is entirely conjured up as the result of their 
bitter feeling against him. The young men practicing law in Boston have 
held him up as the ideal of what a lawyer should be—courageous, honest, 
faithful, and zealous in representing his clients, and in the performance of his 
duties as a citizen most unusual and unselfish. The accusation that he does 
not think honestly is to me so absurd, so unwarranted, in view of his public 
acts and of his splendid accomplishments in the public’s behalf, that it seems 
incredible that men of any type can even give utterance to, let alone think, such 
things about Mr. Brandeis. 

The accusation that the majority of the bar or of a very large number of the 
bar in Boston have no faith in him is to me the most astounding charge, in 
view of the fact that his office is now, and has been for years, one of the most 
prominent law offices in this city, and that Mr. Brandeis’s firm is constantly 
coming in contact with numbers of members of the bar. I have yet to hear any 
lawyer call the conduct of Mr. Brandeis or his associates to account, except in 







KOMINATION OF LOUIS D. BEANDEIS. 


87 


those instances which have already been made public and which have been 
known for years. As to these accusations it should be borne in mind that every 
lawyer’s conduct is capable of being misinterpreted. A lawyer is frequently 
placed in a position where it is dithcult for him to know what to do, and where 
his conscience is the sole test as to whether he has done his full duty to all 
concerned. This must necessarily be the situation in the cases in which IMr. 
Brandeis was called upon to represent the apparently harmonious, but to some 
extent, conflicting interests. Those who know Mr. Brandeis as I do feel that 
he has conscientiously fulfilled his duty as he saw it to all concerned. Un¬ 
friendly persons are likely to misinterpret his conduct in that regard. To 
my mind the lawyer who endeavors to reconcile the apparently conflicting 
interests, thus preventing wasteful and annoying litigation, serves all interests 
best and renders at the same time a great public service. There are many 
times when it is unwise for him to attempt such a course, but when all parties 
consent and the lawyer does his best for the time being, if all his foresight 
and sense of justice fail to accomplish this purpose, is he to be condemned 
for it? 

The accusation that INIr. Brandeis is the sort of man who would betray his 
clients is not borne out by anything which I have ever heard of him from his 
numerous clients, many of whom I know intimately, who are substantial 
business men and have been his clients for years. They have to a man always 
spoken of him in the most praiseworthy way. 

I feel certain that if any of the men who have testified before the com¬ 
mittee had been present at any of the gatherings at which Mr. Brandeis was 
either a speaker or a guest and saw the wonderful receptions which he received 
from people of every walk in life, from the humblest to the most prominent, 
that not even their vindictiveness would have given them the courage to have 
given the testimony before the committee which they gave. I have never wit¬ 
nessed more genuine enthusiasm of a public man anywhere than I have wit¬ 
nessed at large gatherings at which Mr. Brandeis was either a speaker or a 
guest. I have heard men in every walk of life i)raise INIr. Brandeis in terms 
which, in his presence, I am sure frequently embarrassed him, and it is incon¬ 
ceivable that the man who has the “ reputation ” which has been testified to 
before the committee should be so lauded and praised. 

I was attorney for one of the creditors in the Lennox case, and I was active 
in that matter. There was nothing in the Lennox case with which any creditor 
or any party interest could complain of as against Mr. Brandeis. If he pur¬ 
ported to represent “ the situation ” (which is not uncommon practice), he and 
his associates did it in a masterful and an entirely proper way. This is at¬ 
tested by the fact that for months after INIr. Nutter was appointed common-law 
assignee, and months after the involuntary petition was filed, not a single 
creditor made a move to ask for the appointment of receivers to take the place 
of Mr. Nutter or to serve with him as receiver, which they had a right to do. 
It has been suggested that the filing of the involuntary iietition by Mr. Brandeis’s 
office was not proper. If an involuntary petition had not been filed by IMr. 
Brandeis’s office I feel quite certain, from what I know, that others would 
have filed such a petition, and, as a matter of fact, the records will show that 
two other petitions were filed after the petition was filed by IMr. Brandeis’s 
office. 

It is my opinion that every attorney including those who have testified 
against him would trust Mr. Brandeis and his office to keep any agreement 
which he or any of his associates would make. I have heard judges of our 
courts speak of Mr. Brandeis and his associates in the very highest terms, 
and I have never heard iiny attorney outside of tliis small coterie say any¬ 
thing derogatory of Mr. Brandeis or speak of him in any terms except the 
highest. There is a feeling here in Boston that if you want to know what an 
attorney thinks of Mr. Brandeis you must first find out what bis affiliations 
and associations are. If they are with the type of lawyers who testified 
against him the chances are that they will stand with Mr. Storey and Mr. 
Bailey. If on the other hand, they are with the every day lawyer who does 
not represent vested interests, large corporations, or predatory wealth or the 
so-called “ Back Bay crowd,” I am quite sure that to a man they will stand 
with Mr. Brandeis and urge his appointment. The latter class constitutes by 
far the great majority of the bar, and with them IMr. Brandeis’s reputation is 
to be envied. 


88 


NOMINATION OF LOUIS D. BRANDEIS. 


I have felt that the real issue before your committee is not Mr. Brandeis’s 
character, his standing, his reputation, or his ability, but as to whether Mr. 
Brandeis’s service to the people of the country shall be condemned and as to 
whether the powerful interests behind the opposition shall be condoned for 
their wrongful acts. Shall Mr. Brandeis, w;ho has altruistically given his 
efforts for the welfare of the rank and file of the country, be crucified so that 
the opposition may say to men of his type, “ there hangs the man who was 
broken on the wheel because he attacked us”? Shall the Senate of the United 
States say that dishonest business, those who violated trusts and who break 
laws, may continue in their course, and those who attempt to interfere with 
them are doomed to destruction? 

Mr. Brandeis’s works are milestones in the progress of the country. He has 
labored to make the law a living, vital force for the equitable benefit of all 
and he has tried to correct it as a force which serves only a few and makes 
the public subservient to their interests. His grasp of government, his under¬ 
standing of the conflicting social and economic forces, his genuine sympathy 
for all mankind, his extraordinary experience, his prodigious capacity for work 
can not but help make him one of the greatest judges of all times. If the Sen¬ 
ate rejects him, I am satisfied that the great majority of the bar and the public 
will feel that the Supreme Court will have lost the services of a great man, one 
of the greatest of our time. 

Yours, very truly, 

Arthur Berenson. 


Craig Hall, 

Atlantic City, N. J., March 13, 1916. 

Dear Sir: The day you left Atlantic City I called at the Dennis to say a 
few v/ords on the matters about which I am now writing. 

I wanted to say that I hope<I Mr. Brandeis would be confirmed, for I have 
had a casual acquaintance with him dating back 35 years. I attended a part of 
the hearings in Washington and heard the evidence in the New England Rail¬ 
road, the Warren Will, and the United States Shoe Machinery cases. Judging 
the other allegations by these, I did not see any need to hear them. From what 
I heard in the above cases I rated the testimony as simply the whining of 
whipped dogs. 

My brother, who has just retired from 40 years of law practice at Boston to 
our old plantation in Alabama, was in the Harvard liaw School with Mr. 
Brandeis and knows his record in Boston. He has written an open letter 
strongly urging his confirmation. 

The Boston & Maine and the New Haven Railroads were looted by a group 
of lawyers, bankers, and promoters in Boston with strong copartners in New 
York. It is these men who are the real opponents of Mr. Brandeis. I know 
personally a majority of the Boston lawyers who appeared before the Senate 
committee, and they were simply responding to their personal environment. 
The same may be said of President Lowell of Harvard, who, I have the strongest 
reasons for believing, did not represent the prevailing sentiment of Harvard 
alumni when he signed the protest of the Boston lawyers against the con¬ 
firmation of Mr. Brandeis. The Harvard sentiment on that point is expressed 
in an editorial in the New Republic of February 26. A copy of this I have 
sent to the Senate committee. 

If the Government shipping bill ever reaches the Senate I hope that wiP 
pass. The shipping question I have studied for a number of years, because I 
had an interest as a shipper in that direction. I do not believe under world 
conditions of to-day that we can build up a merchant marine without the aid 
of the Government’s credit. Our private capitalists are nearly all associated 
with the foreign ship monopoly that is fighting the bill. That makes any new 
private shipping concern almost an impossibility. The plan of aid provided in 
this bill seems to me much better than that of granting subsidies. My reasons 
for that position you will find stated in my remarks before the House Com¬ 
mittee on Merchant INIarine. 

Yours, truly, 


To United. States Senator Oscar W. Underwood, 


Thomas P. Ivy. 


Washington, D. C. 



NOMINATION OF LOUIS D. BEANDEIS. 


89 


Hon. William E. Chilton, 

United States Senate, Washington, D. C. 


Boston, February 23, 1916. 


Dear Sir : I write this letter to urge the confirmation of Louis D. Brandeis, 
who has been nominated as Associate Justice- of the Supreme Court of the 
United States. 

I feel it my duty to address you because I am a lawyer in practice in Boston 
for more than 30 years and am still in active practice here. I have known 
Mr. Brandeis during the entire period. 

It may be proper for me to state that I was for some years connected with 
the district attorney’s office in this county, and, after that, before entering 
into general practice, was for some years first assistant city solicitor of the 
city of Boston. 

I have always considered and now regard Mr. Brandeis as a man of great 
intellectual attainment of the highest character, whose motives are pure 
and noble. 

It would be impossible for a man who has taken such decided stands and 
expressed what in this conservative end of the world may be called “ advanced 
view’s ” not to be criticized by some large interests. 

It is my belief that our people as a whole have confidence in him and wish 
to see his nomination followed by his confirmation. 

Very respectfully, yours. 


Robert W. Nason. 


March 1, 1916. 


Hon. WiLLiAikt E. Chilton, 

Chairman of the Subcommittee on Judiciary Appointment, 

Washington, D. C. 


Dear Sir: From reports of the testimony already submitted to your com¬ 
mittee appointed to consider the appointment of Louis D. Brandeis to the 
Supreme Court of the United States. I have learned that certain unfavorable 
opinions have been placed before your committee regarding the reputation in 
this community of the man you are considering. 

These opinions are, to my knowledge, not representative of the general 
opinions of the reputation of Mr. Brandeis. 

During my experience as a practicing attorney in Boston I have had 
brought to my attention on numerous occasions the general reputation of Mr. 
Brandeis. On every occasion that I have heard mention made of Mr. Brandeis 
it has always been in commendation of Mr. Brandeis, praising him for his 
standards of honesty, trustworthiness, fidelity, and profound knowledge of 
the law. I know these opinions are shared by a substantial majority of the 
lawyers of this-community. 

I sincerely hope that Mr. Brandeis will be recommended by the committee 
for appointment to the Supreme Court of the United States, and I feel that 
the esteem in which the Supreme Court of the United States is held by the 
people will thereby be greatly increased. 


Respectfully, yours. 


Louis Abrahams. 


February 19, 1916. 

Senator William E. Chilton, 

Chairman Subcommittee, Washington, D. C. 

My Dear Senator: The nomination by the President of Louis D. Brandeis, 
of the Boston bar, for the position of Associate Justice of the Supreme Court of 
the United States meets wdth my approval. 

I have practiced law in Boston for 15 years. The senior member of our firm 
has practiced in Boston since 1872. Our firm has had frequent matters with 
Mr. Brandeis’s firm. The senior member of our firm, who at present is ill and 
unable to address you, has many times been interested in matters in which Mr. 
Brandeis w’as interested, one side or the other. 

Our relations have been cordial, and we have had gi’eat respect for Mr. 
Brandeis and his firm throughout all these years. 




90 


NOMINATION OF LOUIS D. BEANDEIS. 


From what I hear of the talk of other lawyers, I wish to say to you that I do 
not believe that the recent protest by certain Boston lawyers in any way rep¬ 
resents the feeling of the Boston bar in reference to this nomination. 

Yours, truly, 

Joseph W. Bartlett. 


fFrom the office of Maurice Bergman, attorney and counsellor at law, Old South Building, 

Boston, Mass.] 


February 29, 1916. 

Senator William E. Chilton, ^ 

Chairman Subcommittee, Washington, D. C. 

My Dear Sir: I have been in practice in this State since August 31, 1909, and 
during this period have constantly had before me as an example of success in 
legal attainment the career of the illustrious Louis D. Brandeis, whom I believe 
to be a true champion of the people of these United States, and that he stands 
for honor and integrity and constantly strives to achieve equality for all and 
special privilege to none. 

Having these sentiments in mind, I take the liberty of addressing this com¬ 
munication to you. 

Very respectfully, yours, 


Boston, Mass., Mareh 1916. 


Hon. William E. Chilton, 

Chairman Subcommittee on the Judiciary, Washmgton, D. C. 


Dear Sir: In re Louis D. Brandeis. Permit me as a humble member of the 
Boston bar to add my bit to the many other which you must have received 
indorsing the appointment of Mr. Brandeis to the Supreme Court. 

I have met Mr. Brandeis, personally on several occasions and have found 
him a man of high ideals. His reputation among the members of the Boston 
bar, notwithstanding the report given by the self-constituted committee of 
“ State Street lawyers,” is most excellent, both as to his personal character 
and to his legal ability. 

I wish I could say as much of several of the remonstrants. 

Very truly, yours. 


Harry Bergson. 


March 1, 1916. 


Hon. William E. Chilton, 

Chairman Subcommittee, United States Senate, Washington, D. C. 


Dear Sir : Permit me to add my indorsement to those of many others, which 
I am sure you have received in the matter of Mr. Louis D. Brandeis as Justice 
of the United States Supreme Court. I have had occasion to know Mr. Bran¬ 
deis quite thoroughly, both as a lawyer and as a man, and though I could give 
many details of his worth and fitness for the high office to which he has been 
nominated, I will not encroach so unnecessarily upon your time. 

Let me, then, merely summarize by saying that as a lawyer of almost 20 
years’ practice I would stake my reputation upon the prophecy that Mr. Bran¬ 
deis will do honor and credit to his country as a Supreme Court Justice. 

Respectfully, yours. 


Wm. M. Blatt. 


Boston, Mass., March 6, 1916. 

Hon. William E. Chilton, 

United States Senate, Washington, D. C. 

Dear Sir : As a native and lifelong citizen of Boston and a practicing mem¬ 
ber of the Massachusetts bar for more than a dozen years, I can not too 
strongly urge the confirmation by your honorable committee of the nomination 
of Louis D Brandeis, Esq., as Associate Justice of the Supreme Court, as I 
know him to be admirably equipped with the very qualities requisite for 
such office. 

Respectfully, yours, 


Abraham Blumenthal. 







NOMINATION OF LOUIS D. BEANDEIS. 


91 


Senator William E. Chilton, 

Chairman Subcommittee, United States Senate, 

W ashington, 


Februaky 29, 1916. 


D. C. 


Ml' Dear Senator : Permit me to express the hope that your committee will 
report favorably on the confirmation of Louis D. Brancleis as Associate Justice 
of the Supreme Court of the United States. 

I have known Mr. Brandeis for a number of years. I first met him wdien he 
appeared before some of the committees on which I had the honor to serve 
as a member of the Massachusetts Legislature, and I know that even in those 
days he was considered one of the shining lights of the Massachusetts bar and 
a man whose integrity and honor was above suspicion. Since then I have 
known Mr. Brandeis more intimately both as a member of the bar and in 
philanthropic work and learned to admire and appreciate his many great 
qualities. 

I have no doubt that as a member of the chief tribunal of our great country 
he will fill the place with honor. 

Very truly, yours. 


Samuel H. Borofsky. 


[Massachusetts Catholic Order of Foresters, Joseph T. Brennan, high chief ranger.] 


17 Worcester Street, 

Boston, February 25, 1916. 


Hon. William E. Chilton, 

United States Senate, Washington, D. C. 

Sir : As the executive head of the largest fraternal insurance organization 
in this State, having an active membership of 42,000 adults; as an attorney 
practicing in the P^ederal and State courts for 12 years; as a citizen who has 
endeavored to keep in close touch with industrial, social, and legal, and political 
conditions, I have had an extraordinary opportunity to observe the sentiment 
of the people of this community for and against the confirmation of Louis D. 
Brandeis as Justice of the Supreme Judicial Court. Outside of a few indi¬ 
viduals, with personal or biased motives, and irrespective of class, creed, or 
race, the unanimous opinion is that the nomination should be confirmed. 

I therefore beg to add my name to the long list of those who have already 
indorsed Mr. Brandeis, and trust that the honorable committee of which you 
are chairman will report favorably. 

Respectfully, 


Joseph T. Brennan. 


February 23, 1916. 

Hon. William E. Chilton, 

Chairman Subeommittee of Senate Judiciary, 

United States Senate, Washington, D. C. 

Dear Sir : In view of the fact that several of my associates at the bar have 
seen fit to protest against the appointment of Louis D. Brandeis, I wish to go on 
record in favor of his appointment. 

I believe that Mr. Brandeis’s presence as a member of the United States 
Supreme Court will greatly strengthen that body. 

Yours, very truly, 

Lawrence G. Brooks. 


40 Court Street, 
Boston, Mass., February 24, 1916. 

Senator William E. Chilton, 

Chairman Subcommittee United States Senate, 

Washington, D. C. 

Dear Sir: This letter is intended as an indorsement of Louis D. Brandeis, 
who has been nominated as Associate Justice of the Supreme Court of the 

United States. ^ , 

I have been practicing law in the city of Boston 12 years and have been a 
member of the city government of the city of Boston and of the Massachusetts 
Legislature, and I feel that the opposition that has been shown toward the con¬ 
firmation of Mr. Brandeis comes from such a circle that opposes anything that 





92 


NOMINATION OF LOUIS D. BEANDEIS. 


tends toward democracy. I assure you that the different lawyers who signed 
the petition opposing his confirmation are not the men that rub elbows with the 
everyday lawyer who practices in our Massachusetts courts. 

I think that the addition of Mr. Brandeis to the Supreme Court of the United 
States would be a great step toward the advancement of ideas that have long 
had a place in the history of our country. 

Very truly, yours, 

A. M. Burroughs. 


February 19, 1916. 


Hon. William E. Chilton, 

United States Senate, Washington, D. C. 

Dear Sir: Referring to the matter pending before the Judiciary Committee of 
the United States Senate on the confirmation of Hon. Louis D. Brandeis as Asso¬ 
ciate Justice of the Supreme Court of the United States, permit me to say, in 
view of the report of the evidence which I have seen in the local newspapers, 
that in my opinion Mr. Brandeis has the respect and confidence of this 
community. 

I am writing as an attorney admitted to the bar of Massachusetts and prac¬ 
ticing at Boston since July, 1894, and now occupying the position of a special 
jusice of the municipal court of the city of Boston. 

I know Mr. Brandeis and have met him professionally and in matters relating 
to civic and social welfare of this city. 

I am in favor of the confirmation of the nomination. 

Very respectfully, yours. 


A. K. Cohen. 


February 29, 1916. 

Hon. William E. Chilton, 

United States Senate, Washington, D. C. 

Dear Sir : As a member of the Massachusetts bar and practicing attorney for 
the past four years, I beg the liberty of registering my heartiest and sincere ap¬ 
proval of Louis D. Brandeis, Esq., as Associate Justice of the Supreme Court of 
the United States, earnestly believing in his sterling qualities, judicial tempera¬ 
ment, and national demonstrative ability. I believe I am expressing the senti¬ 
ments of impartial and unbiased thinkers of this community to whom he has 
endeared himself through his sympathetic knowledge and wide experience in the 
needs of our present financial and business organization, in its relation to social 
organization. 

Respectfully, yours, Emanuel Cohen. 


February 29, 1916. 


Hon. William E. Chilton, 

United States Senate, Washington, D. C. 

Honorable Sir: Having been born in Boston and educated in its public 
si'hools, and having received two degrees from Harvard University, I write you 
with a deep sense of my responsibility as an American citizen, "indorsing Mr. 
Louis D. Brandeis for the position he has been recently named to by our 
President. 

I realize that a man requires not only exceptional ability but unquestioned 
integrity in order, adequately, to fill a position in the United States Supreme 
Court. 

I have known Mr. Brandeis for several years, and have met him socially and 
in a business way. Though of the opposite political party I indorse Mr. Brandeis 
most highly. I know him to be a man of absolute honesty,. unquestioned in¬ 
tegrity, and marked ability, and I am positive that he, if confirmed, will fill the 
position with dignity and to the entire satisfaction of all the people of the 
United States. I know that I reflect the concensus of opinion of the Boston bar 
in these statements. 

In conclusion, I thank you for giving this letter your attention. 

Respectfully, yours. 


Franklin M. Cohen. 








NOMINATION OF LOUIS D. BRANDEIS. 


93 


March 3, 1916. 

Hon. William E. Chilton, 

Chairman Subcommittee, United States Senate, Washington, D. C. 

My Dear Sir ; As a member of the Massachusetts bar and a member of the 
general court of this State for several years, I wish to attest as to the qualifica¬ 
tions, ability, and character of Mr. Louis Brandeis, now under consideration by 
your committee, as the appointee of President Wilson to the Supreme Court of 
the United States. 

While my professional associations with Mr. Brandeis have not been over an 
extended period of time, nevertheless whenever I have had occasion to transact 
business with him I have always found him to have been a man of the highest 
type, and, as a result of my observations of him, I take pleasure in saying that 
I have the utmost confidence in him and feel that he is thoroughly qualified in 
every particular to fill the high office to which he has been appointed by the 
President. 

I am, sir, very truly, yours, William N. Cronin. 


Somerset Club, 
Bostofi, March 21, 1916. 

To Woodrow Wilson, President, 

Washington, D. C. 

Mr. President : In the thought that possibly an added word not idly said by 
one possessing personal knowledge in regard to a high nomination lately made 
by you may not prove superfluous, I write as an older Boston and Harvard man 
who has followed Mr. Brandeis’s career with interest from its early stage, and 
who has known intimately his friends and those of greatest weight who now 
oppose him, to say that, with full knowledge of the aims of these, I know the 
best regard the nomination as a singularly happy one. Mr. Brandeis, if his ap¬ 
pointment be confirmed, will bring to that high court strong human sympa¬ 
thies and a creative intelligence, as well as legal knowledge, courage of con¬ 
victions, and clear, quick apprehension. And that he will be adequately con¬ 
servative in the presence of that great responsibility I have no fear. 

I trust accordingly, for the country’s sake, that this appointment may, in 
despite of opposition, be confirmed, and with an expression of high personal 
respect, I remain. 

Yours, truly, 

George B. Dorr. 


March 1, 1916. 

Senator Chilton, Chairman, 

Washington, D. C. 

My Dear Senator : As an attorney practicing in Boston since 1912, and as 
a social worker of many years, I desire to take the opportunity of going on 
record in favor of the appointment of Louis D. Brandeis as Associate Justice 
of the Supreme Court of the United States. 

Mr. Louis D. Brandeis is known in this community as a man of great ability 
and sterling character. His reputation for honesty and uprightness is a mat¬ 
ter of common knowledge among all the members of the bar, who have had 
occasion, disinterestedly, to watch his conduct in the many important causes 
with which he has been connected. Words of reproach against the reputation 
of Louis D. Brandeis as a member of the bar can come only from those per¬ 
sons who represent the vested interests and have had occasion very frequently 
to feel the force of his attacks. 

Our country will indeed be fortunate if this learned jurist is placed upon the 
highest legal tribunal of this land, and that august and majestic body will be 
increased in strength by his membership. 

Very truly, yours, 

Harry E. Dubinsky. 


February 16, 1916. 

Hon. William E. Chilton, 

United States Senate, Washington, D. C. 

Dear Sir : I take the liberty of writing the following letter in support of the 
nomination of Louis D. Brandeis as Associate Justice of the Supreme Court of 
the United States. 





94 


KOMIXATION OF LOUIS D. BEANDEIS. 


My practice has been in the State as well as the United States court the last 
16 years, and in 1914 and 1915 served as assistant attorney general of the 
Commonwealth of Massachusetts, and since has returned to private practice, 
and have been more or less active in public affairs and public questions. 

Mr. Brandeis has been known to me personally and professionally during the 
last 16 years, and ever since I first met him he has appealed to me as the ideal 
lawyer and public man. I have been with him in many cases, and notably a 
large bankruptcy case in 1904, where his conduct with reference to fairness, 
wisdom, and integrity has ever remained with me as one of the pleasant 
memories of a lawyer whose practices were far higher than what one is wont 
to expect. I have differed from him in many questions of public policy, but 
even in those cases had a feeling that he represented more of the right attitude 
than I did. 

His confirmation to the bench of the United States Supreme Court will be a 
distinct accession in dignity, force, and learning, and I prophesy that the time 
will come when his opinions and influence will be regarded as one of the in¬ 
fluences of the early twentieth century in the decisions of that tribunal. 

I have read of the opposition to his confirmation; I know it comes from a 
class in our community which, like the old Boston mob, so wonderfully de¬ 
scribed by Wendell Phillips, were the proponents of slavery, which mob was 
constituted of the best citizens, so called, of Boston, because of their fear that 
some tradition of conservatism might be affected, and yet that very class, as 
you will remember, became the heroes in the war which followed. This class 
feels—and it is a very small minority of the community, both at the bar and 
out of it—that unless a man is of the bone and sinew of Massachusetts he 
should not have high place, however useful, sincere, and effective his career has 
been. Privately they will admit the almost incomparable attainments of Mr. 
Brandeis, but they fear the things he seeks to criticize; but they will be the 
first to realize 10 years later that his criticisms and work are the foundations 
of a new and better order. Their opposition therefore ought not be regarded 
too seriously. Their fears discolor their better judgment. The great voice of 
the country wish the confirmation to be made. 

Very respectfully, yours. 


L. R. Eyges. 


March 9, 1916. 

Hon. William E. Chilton, 

Chairman Subcommittee, United States Senate, 

Washington, D. C. 

Dear Sir : I have been an assistant corporation counsel of the city of Boston 
for the last 11 years and during that time have had several cases with the 
office of Mr. Brandeis. He is, to my knowledge, well known at the bar as a 
lawyer of great learning who has given very largely of his time and abilities 
to public questions. 

I have never heard anyone question his great ability and his capacity for 
public service. I am of opinion that the real sentiment of tlie community favors 
his confirmation as a member of the Supreme Court of the United States, and 
believe that Mr. Brandeis is a lawyer of great ability whose presence on the 
Supreme Bench would greatly strengthen it with the people as well as with 
members of the bar. 

I am, very respectfully, yours, 

, Geo. Flynn, 

Assistant Corporation Counsel. 


[Crigler & Frank, attorneys at law, suit 1117, Third National Bank Building, St. Louis.] 

March 16, 1916. 

Chairman of the Senate Judiciary Subcommittee, 

Washington, D. C. 

Dear Sib: I had occasion to notice yesterday in the press dispatches that a 
letter has been written to you by some of the leading men of this country, 
among whom were Elihu Root and William H. Taft, the letter in substance 
stating that it was their painful duty to say that they did not believe Mr. 
Louis D. Brandeis a fit person for membership in the Supreme Court of the 
United States. 




NOMINATION OF LOUIS D. BKANDEIS. 


95 


I wish to call your attention to the fact that during the Glavis-Ballinger 
investigation Mr. Brandeis was counsel for Glavis; that in the course of the 
investigation he made Attorney General Wickersham admit that certain papers 
submitted by the White House to the Senate, at their request, had been ante¬ 
dated by him; that the White House, after denying the antedating, admitted 
the truth of this fact; that the White House again admitted later certain mis¬ 
representations that it had made with reference to Lawler, a subordinate of 
Ballinger, and Kerby, Lawler’s stenographer. 

These decisions plainly show that the White House in response to the Senate’s 
request had sent to Congress an important paper not relied on by the White 
House, and omitted to send another important paper on which the White 
House’s previous decision relied, but from which only portions were copied. 
I have as my authority for this a preface, by Ernest Poole, to the book Business 
a Profession, by Louis D. Brandeis, and published by Small, Maynard & Co., 
Boston, page xxxix et seq. In connection with Ballinger’s grilling examination 
by Brandeis, Mr. Root intervened with certain questions, showing his interest 
in the affair. 

I have no doubt but that the Senate records qf this investigation will bear 
out these assertions. A President is primarily responsible for the conduct of 
members of his administration, and perhaps this incident will throw a little 
light upon why Mr. Taft and Mr. Root are so “ pained ” to write the above 
letter to you. 

If you doubt the truth of any of my statements above, I believe a little inves¬ 
tigation on your part will reveal the fact that they are true. I am sending a 
copy of this letter to President Wilson. 

Trusting that you will give the above due consideration, and that the real 
motive behind the letter written will be seen by you, I beg to remain. 

Yours, very truly. 


IMalcolm I. Feank. 


[Max M. Fritz, attorney and counselor at law, 40 Court Street.] 

Boston, Mass., March 1, 1916. 

Hon. William E. Chilton, 

Chairman Subcommittee, Washington, D. C. 

Dear Sir : I have been a member of the Massachusetts bar for the past nine 
years, and have always looked upon Louis D. Brandeis as the ideal type of a 
lawyer. I have always heard none but the highest comment concerning his 
practice at the bar and his willingness to offer his services to the people at 
all times. 

I respectfully urge you and your committee to submit a favorable report m 
the matter of the appointment by the President of Louis D. Brandeis as Asso¬ 
ciate Justice to the Supreme Court of the United States. 

Very truly, yours. 


' . March 1, 1916. 

Hon. William E. Chilton, 

Chairman of Subcommittee, Washington, D. G. 

Dear Senator Chilton : As a member of the Massachusetts bar practicing 
in Boston for nearly 16 years, and familiar with the reputation of all our big 
lawyers and the nature of their practice, I desire, in the interest of justice, to 
write to your committee strongly urging the confirmation of Louis D. Brandeis 
as a member of the Supreme'Court of the United States. , , 

The criticisms of IVIr. Brandeis, of which I have read in the daily papers, all 
come from business men whose methods and interests have been attacked by 
Mr. Brandeis or from lawyers who represent the so-called “ vested interests, 
whose methods have been so ably exposed by Mr. Brandeis in the public 
interest. I have looked in vain among the names of the men who are oppos¬ 
ing Mr Brandeis for a single one whose interest it has been to promote the 
nublic welfare, and in the last analysis it seems to me that t^he objection to 
Mr Brandeis on the part of his opponents is that he would not be very friendly 
to illegal combinations in restraint of trade. So far from being an objection 
this strikes me as being a splendid recommendation for an appointee to the 
Supreme Court of the United States. 






96 


NOMINATION OF LOUIS D. BKANDEIS. 


Neither Mr. Bailey nor any of the attorneys representing the large colora¬ 
tions, who have appeared before your committee to oppose the confirmation of 
Mr. Brandeis, represents the opinion of the Massachusetts bar as to the repu¬ 
tation of Mr. Brandeis for “ straightforwardness ” and “ fair dealing.” The 
rank and file of the bar who know anything about Mr. Brandeis, either by repu¬ 
tation or from business relations with him, believe him to be a high-minded, 
conscientious, honorable lawyer, and I believe it would be for the best interests 
of the country that Mr. Brandeis should be confirmed. 

Very truly, yours, 

Francis P. Garland. 


18 Tremont Street, 

Boston, March, 1, 1916. 


United States Senator William E. Chilton, 

Chairman Subcommittee, United States Senate, 

Washington, D. C. 


Dear Sir : As an active member of the Boston bar for the last 10 years, I 
have been in close touch with many matters in which Louis D. Brandeis, Esq., 
of Boston, has been interested. I feel it my duty, therefore, to call the atten¬ 
tion of your honorable committee and the Members of the United States Senate 
that it is my belief that there is no more honorable member of the Massa¬ 
chusetts bar. He has the highest respect of all those with whom I have come 
in contact, not only for his ability but for his honesty and integrity. 

I most heartily approve that his nomination by President Wilson as a Jus¬ 
tice of the United States Supreme Court be confirmed. 

Respectfully, yours. 


Edward E. Ginsburg. 


[Nathaniel Golden, counselor-at-law, 40 Court Street, Boston.] 

February 29, 1916. 

Senator William E. Chilton, 

Chairman Subcommittee, United States Senate, 

Washington, D. C. 

Dear Sir: As a graduate of Harvard College, 1912, and of Harvard Law 
School, 1914, and as a member of the Suffolk bar of the Commonwealth of 
Massachusetts, I beg to add my hearty approval of the confirmation of the 
appointment of Louis D. Brandeis, Esq., as a justice of the United States 
Supreme Court. 

Though my personal acquaintance with Mr. Brandeis is but a recent thing, 
my knowledge of his unselfish and illy recompensed devotion and service to 
the cause of the mass of people extends back for many years. When I recall 
a conversation that I had with President Lowell some three years ago anent 
Mr. Brandeis who had a few days previously delivered a lecture in Cambridge 
on one of the many humane things to which he has so long given of his time 
and money, I can not help but form the conclusion that the sincerity and 
purity of motives of the signers of the petition of protest, of whom President 
Lowell was one, must be impugned, and that it is predicated upon some 
ulterior purpose. 

The general public has long recognized and admired Mr. Brandeis’s profound 
mentality and his courageous love for the truth, and I am certain that the 
general sentiment is overwhelmingly in favor of his confirmation. 

Yours, very truly. 


Hon. William E. Chilton, 

United States Senate, Washington, D. C. 


February 28, 1916. 


Dear Sir: I am writing you this letter as an indorsement of Louis D. Bran¬ 
deis, who has been nominated as Associate Justice of the Supreme Court of the 
United States. 

I am a member of the bar, and, although I am a former member of the Re¬ 
publican city committee of Chelsea, I would not permit politics to enter into 
my indorsement of Mr. Brandeis. 

I have been personally acquainted with Mr. Brandeis for several years and 
he has impressed me as a possessor of keen intellect. He engages both in pub- 







NOMINATION OF LOUIS D. BKANDEIS, 97 


lie and private activities with sincerity of purpose, and I have always consid¬ 
ered him a rare man. 

I believe that the opposition to his confirmation comes from sources that 
may be classified under the category of special privilege, and it would indeed 
be lamentable for the progress of this Government if the moneyed interests 
should influence the appointment of any man to the greatest court "in the world. 

Permit me to assure you that I am heartily in favor of the confirmation of 
Mr. Brandeis. I am, 

Very respectfully, 


Geo. E. Gordon. 


February 23, 1916. 

Senator William E. Chilton, 

Chairman Subcommittee, United States Senate, 

Washington, Lk C. 

Honorable Sir : I take the liberty of indorsing the appointment of Louis D. 
Brandeis, Esq., as Associate Justice of the United States Supreme Court. 

1 have discussed this appointment with a large number of lawyers and people 
in this community, and can unhesitatingly say that this appointment meets 
with the approval of a great majority of the legal profession in this city and the 
people of our community. 

From my observation and study of this controversy I am led to the conclusion 
that no small part of the opposition is due to racial prejudice, and that the rest 
of the opposition can be attributed to hostile corporation or privileged interests. 

I have been a member of the Massachusetts bar for over 10 years and have 
practiced in the United States courts for several years. I have served my com¬ 
munity in our city government and the Massachusetts Legislature, and by rea¬ 
son of such service and in the course of my practice I have had occasion to 
meet Mr. Brandeis and consider his attitude on many important public questions. 

I know Mr. Brandeis to be a man of sterling character, of excellent standing 
in the legal profession and our community, possessed of a profound knowledge 
of the law, and one of the leading lawyers of our State. By reason of his 
knowledge of the law, ability to regard weighty and vital problems with keen 
and sagacious discernment, his experience with and knowledge acquired in im¬ 
portant labor controversies, and participation in so-called “ people’s conflict 
with railroads, gas companies, and monopolies,” and other questions and mat¬ 
ters vitally affecting the people of our country, he is as thoroughly equipped 
for that honorable body as any man in the public eye to-day, if not more so. 

I feel that failure on the part of the United States Senate to confirm this 
appointment would almost amount to a public calamity, and I strongly urge 
your honorable committee to make a favorable report in his behalf. 

You are at liberty to make as much use of this letter as you deem advisable 
or necessary. 

Respectfully, yours, 

Isaac Gordon. 


17 Milk Street, 
Boston, Mass., March 3, 1916. 

Hon. Will [AM Chilton, 

United States Senate, Washington, D. C. 

Dear Sir: In view of the so-called “Boston petition,” and the wholly un¬ 
expected quarter from which the voice of the people appears to have emanated, 
possibly the opinion of an inconspicuous member of the Boston bar, but one 
^dio has ha.l many dealings with Mr. Brandeis, may be of some interest. 

During the past 13 or 14 years I have been general counsel for the Boot and 
Shoe Workers’ Union, an organization composed of 40,000 men and women shoe 
operatives throughout the United States and Canada. In many important 
matters affecting the shoe industry Mr. Brandeis represented the shoe manu¬ 
facturers, and In conference serious difficulties were often averted by the 
sound judgment, the keen insight, and the absolute fairness of Mr. Brandeis. 
In several controversies affecting the union where the interests of Mr. Bran- 
deis’s clients were not involved I retained him as senior counsel, notwithstand¬ 
ing the fact that this gave him information which had he been unscrupulous 
or*"untrustworthy could have been used to our disadvantage. My selection of 
Mr Brandeis as senior counsel in these matters was always approved by the 


Ex. Kept. 2, pt. 1, 64-1-7 





98 


NOMINATION OF LOUIS D. BBANDEIS. 


general officers of the union, and our implicit confidence in his integrity re¬ 
mains unshaken. 

I have known Mr. Brandeis for 20 years. Until the New York, New Haven 
& Hartford Railroad inquiry I never heard from professional or business men 
any expression but of the highest admiration. I know many of his clients, men 
of high standing in business, who have been advised and guided by him for 
years, and who, I am confident, would intrust their entire personal fortunes 
and their business honor in his keeping. 

I believe that Mr. Brandeis has the complete confidence of this community 
excepting only those whose enmity he has incurred in his efforts to correct 
abuses, and I trust the nomination of the President will be confirmed. 

Respectfully, yours, 


Edward S. Goulston. 


]Mr. William E. Chilton, 

Chairman of Subcommittee, Washington, D. C. 


March 1, 1916. 


Dear Sir: As a member of the Massachusetts bar I feel it my duty to ex- 
lu'ess my views relative to the confirmation of the appointment of Louis D. 
lirarideis as Associate Justice of the Supreme Court of the United States. 

I have known Mr. Brandeis for the past 20 years, and I feel justified in say¬ 
ing that his reputation as to honesty and integrity is above reproach and that 
the attempts to stain his trustworthiness are the result of unfairness and 
undue prejudice. 

I am fully convinced that Mr. Brandeis is especially qualified for the position, 
as I know him to be a man of high ideals, one who will exercise his own best 
judgment regardless of fear or favor, one who can not erroneously be influenced 
even for personal gain, but will, if necessary, sacrifice his own interests for 
those of the public. 

I am fully confident that the confirmation of Mr. Brandeis’s appointment 
will add an important link to the chain of the administration of justice of our 
judicial department. He will be a protection not only to the prestige and 
honor of the Supreme Court itself but a protection also to the people and the 
great masses of the country. 

Very truly, yours. 


Isaac H. Greenberg. 


[Elisha Greenhood, attorney at law, 604-5 Pemberton Building.] 

Boston, March 1, 1916. 

Hon. W. E. Chilton, 

Chairman Subcommittee of Judiciary Committee, 

Washington, D. C. 

Dear Sir: Having been in very active practice at the Boston bar for the 
past 31 years, I feel I should furnish your committee with whatever light I 
may have respecting the confirmation matter now pending before it. 

I do not suppose there is a practioner at our bar who knows and has come in 
contact with a greater percentage of all possible subdivisions of our bar of 
3,200 members than I, and I suppose it is obvious to every lawyer of any sub¬ 
stantial experience— 

First. That the individual constituents of no class of men are so thoroughly 
dissected within its own ranks as those of the legal profession. 

Second. That, particularly if successful and originating in other than the 
prevailing nationality or creed, they are very likely to be the victims of jeal¬ 
ousy, mistrust, and misunderstanding, with the usual concomitants of prejudice 
and enmity. 

Having these two important facts in mind, along with my lengthy experience 
and unusually extensive professional acquaintance, I desire to say that, not¬ 
withstanding Mr. Brandeis’s long and highly successful professional activities 
here, his prominence as a publicist in many necessarily friction-making move¬ 
ments, and his nationality, it is true that never before ^le nomination which 
you are considering did I hear, even in a whisper, a single word tending to 
indicate the slightest variation on his part from the highest standard of pro- 




NOMINATION OF LOUIS D. BEANDEIS. 99 

fessional honor and ethics, and that the attacks now made upon him are to me 
as thunder out of a clear sky. 

I must admit that my professional experiences with him have not been very 
many, but I do flatter myself with knowing the general reputation of the mem¬ 
bers of our bar; and I must express the opinion that the supposed general repu¬ 
tation which his opponents are presenting to your committee must be simply 
the prejudiced opinion of a comparatively small and very localized section of 
our bar, which honestly believes itself to be the bar, and that its sentiments— 
usually originating in and propagated by one of its small circle—are those of 
the entire community. 

You will pardon me if, in closing, I add that some 30 years ago I was for over 
a year editor in chief of the Central Law Journal, and that about that time I 
wrote the treatise “ Greenhood on Public Policy in the I.aw of Contracts,” be¬ 
sides editing two columns of Federal decisions in constitutional law, and being 
a rather extensive contributor otherwise to legal literature in my early law 
days. 

I have the honor to remain, yours, very truly, 


Senator William E. Chilton, 

Chairman of Subcommittee, Washington, D. C. 


Febkuary 18, 1916. 


Dear Sir: In the interest of fair play, I do not think that the testimony of 
Hollis R. Bailey, Esq., and others as to Mr. Brandeis’s reputation in Boston 
should remain uncontradicted. I have been practicing law here for 12 years 
or more and during that time I have never heard Mr. Brandeis’s fair-mindedness 
or integrity attacked except by those representing “ special interests ” who 
were engaged in a controversy with him or by newspapers known to be con¬ 
trolled by those “ special interests ” or suspected to be under their influence. 

He has here the reputation of being ever ready to see the right irrespective 
of the person it is attached to, and of being able to demonstrate that right in 
the face of overwhelming opposition, but most conspicuously I think he stands 
in our community as a man who, after his great ability has been proved, has 
continued to be willing to serve, and who has served with remarkable success, 
those who needed service, but who were not strong financially nor powerful 
otherwise. 

Respectfully, yours, 


Louis E. Guillow. 


March 2, 1916. 

Senator William E. Chilton, 

Chairman Subcommittee on Judiciary, 

United States Senate, Washington, D. C. 

Dear Sir: I beg to register my name as being in favor of the confirmation 
of the appointment of Louis D. Brandeis to the Supreme Court of the United 
States. 

From 1905 to September, 1908, I w'as secretary and assistant to the late Prof, 
Frank Parsons, who, as an eminent lawyer, law text writer, sociologist, and 
economist, is undoubtedly known to you and your committee. As an expert 
for the National Civic Federation and head of the National Municipal Owner¬ 
ship League, and in many other capacities, Prof. Parsons was very closely con¬ 
nected with Mr. Brandeis in his work. I learned from Prof. Parsons to regard 
Louis D. Brandeis as a lawyer of exceptional ability, as a man of the highest 
integrity, and as a public-spirited citizen of the finest type. 

Since 1908 I have watched Mr. Brandeis’s work, particularly his public work, 
and I desire to say that I know of no man who is more honest or public-spirited 
or who has greater ability as a lawyer. I believe that Mr. Brandeis as a mem¬ 
ber of the Supreme Court of the United States would be a great addition to 
that already great tribunal. 

It is my opinion that there are two reasons for the strong opposition which 
lias developed against Mr. Brandeis’s confirmation. 

First, the fact that he has always stood for the public against the vested 
interests, even when to do so meant great loss to himself. 

Secondly, and I consider this to be the stronger reason for this opposition, 
that Mr. Brandeis is a Jew. 






100 


NOMINATION OF LOUIS D. BRANDEIS. 


I desire most earnestly to urge upon your committee the recommendation 


that Mr. Brandeis’s appointment be confirmed. 
Very respectfully, yours, 


Harry N. Guterman. 


[Hall & Haeerty, attorneys and counsellors at law, Taunton, Mass. Frederick S. Hall, 

Charles C. Hagerty.] 


Taunton, Mass., February 21, 1916. 


Hon. William E. Chilton, 

Chairman Suhcomwittee, 

Washington, D. C. 

My Dear Sir : I notice from the papers and from other sources that the 
nomination by the President of Louis D. Brandeis, of Boston, for a seat on the 
bencli of the Supreme Court of the United States has created quite a widespread 
discussion. 

Being interested in the man, having watched his movements, and having had 
a number of years’ experience with his office in connection with large interests, 
I think I can truthfully say that personally I have never known him to do or say 
anything which was not in strict accordance with strict legal propriety, and until 
this nomination came up I have never heard him critized. A man of such wide 
knowledge and legal attainments would naturally make enemies, but it seems to 
me, from what I have observed, that there is nothing which v/ould in any way 
disqualify him from filling this most important position to which he has been 
nominated. 

Respectfully, yours.. 


Charles C. Hagerty. 


February 21, 191G. 


Hon. William E. Chilton, 

United States Senate Subcommittee of Judiciary, 

Washington, D. C. 


Dear Sir : It gives me great pleasure to write in regard to Louis D. Brandeis, 

I understand that a number of prominent Boston lawyers have said that Mr. 
Brandeis is not respected by the Boston bar. I think you will find upon investi¬ 
gation that almost all of these men have been bitterly opposed to Mr. Brandeis 
on some financial or public question. He has naturally tread on the toes of a 
great many conservative men and men tied up in large interests, such as the 
New Haven Railroad. I think, therefore, that their statements must be taken 
with a grain of salt. 

It seems to me that Mr. Brandeis’s chief qualities for a position on the 
Supreme Court Bench are his broad point of view in regard to present-day 
economic questions and his very great knowledge of the facts and conditions of 
our modern economic industrial world. 

There are many other lawyers in Boston who feel as I do about this matter, 
and I hope that you will not consider the opinions expressed by Mr. Moorfield 
Storey as binding upon the rest of us. 

Very sincerely. 


Matthew Hale. 


Boston, February 9, 1916. 

Hon. Lee F. Overman, 

Acting Chairman Judiciary Committee, Washington, D. C. 

Dear Sir: It has been my great privilege to have known Louis D. Brandeis 
Intimately for 15 years, during which time he has been my personal and business 
counsellor. I never knew him to advise or suggest anything that was not 
founded on the highest ethical grounds. I have no doubt of his confirmation, as 
it is inconceivable to me that any objection worthy to be seriously considered 
can be offered or that would weigh in the balance against the great addition he 
would be as an Associate Justice of the Supreme Court. 

In my judgment there is no man living who is more the perfect embodiment 
of what he will be sworn to administer—justice. 

Very truly, yours, 


C. B. Hall. 







NOMINATION OF LOUIS D. BEANDEIS. 


101 


Waukesha, Wis., March 1J{, 1916. 

Senator Geokge W. Norris. 

Dear George : Without intending or wishing in any way to influence your 
judgment but only to give you a little facts as they have come to me, I will say 
that you, of course, remember that Lois’s mother had something of an estate left 
her in Boston by her father. 

This was, as I think I explained to you at the time, left in quite a compli¬ 
cated condition. I have never seen any of the firm, but I wrote to Brandeis, 
Dunbar & Nutter and asked them to look after Lois’s interests, which they did. 
They got very good results, and they are still looking after this estate. Their 
charges were very modest, considering the work and the results they got, and 
in view of the attack on Mr. Brandeis I thought that in justice to him I would 
give you these facts. 

Very truly, yours, 


H. H. Harrington. 


March 1, 191G. 

Hon. William E. Chilton, 

United States Senate, Washington, D. C. 

Dear Sir : Believing the appointment of Louis D. Brandeis to the United 
States Supreme Court to be most fitting and proper, I respectfully request that 
you add my name to the multitude indorsing the appointment. 

I assert, resolutely, from my long acquaintanceship with Mr. Brandeis profes¬ 
sionally and publicly that there is no higher type of citizen or public servant 
in our country, notwithstanding the attacks his candidacy has evoked. I know 
of no man in our city who is held in higher esteem or regarded with greater 
reverence and respect than the appointee. 

I am aware of the importance, influence, and standing of the United States 
Supreme Court, the highest court in the world, and I believe that Mr. Brandeis 
would adorn this venerable body. 

Respectfully, yours, 


Isaac Harris. 


/ Joseph M. Herman Shoe Co., 

159 Lincoln Street, Boston, Mass., February 25, 1916. 

Hon. William E. Chilton, 

United States Senate, Washington, D. C. 

Dear Senator : I have known Mr. Louis Brandeis since he entered upon the 
practice of law. I have come into close contact with him in his personal and 
social life, in his professional career, and in his public civic activities. It is 
because of a long and intimate knowledge of the man that I, a member of an 
opposing political party, heartily indorse President Wilson’s selection of him to 
be an Associate Justice of the Supreme Court of the United States and earnestly 
urge the Senate to confirm his appointment. 

Mr. Brandeis is one of the few lawyers of our time in this country who has 
willingly sacrificed lucrative pecuniary returns to an ideal conception of public 
service. His ability as a lawyer, his luminous and keenly trained intellect, his 
untiring industry and abnormal capacity for work, would have brought to him 
permanent retainers from all the great corporate interests in New England had 
he not voluntarily chosen to forego such retainers in the interest of his own 
independence of thought and action. 

The Nation has always needed the services of men of the Brandeis type, and 
the confidence of the people in the Nation’s highest tribunal can not help but be 
strengthened by the selection of such a man for a place on its bench. 

Of Mr. Brandeis’s private life I need not speak, for it has never needed com¬ 
mendation. In temperament he is dignified, calm, and dispassionate; and unless 
fearlessness in announcing the right as he sees the right can be said to deprive 
a man of what is called judicial temperament, then Mr. Brandeis possesses that 
temperament to the highest degree. 

Yours, very respectfully, 


Joseph M. Herman, 




102 


NOMINATION OF LOUIS D. BRANDEIS. 


February 16, 1916. 

Hon. William E. Chilton, 

United States Senate, Washington, D. C. 

Dear Sir : May I add a word in favor of confirmation of the nomination of 
Louis D. Brandeis? 

I am a Democrat, and have been president of the National Democratic League 
of College Clubs and vice chairnuin of the State committee of Massachusetts, 
In 1911 I was a member of the State senate, and declined renomination. In 
1914 and 191.5 I was second, and then first, assistant attorney general of the 
Commnwealth, retiring with the change of administration. I am now engaged 
in private practice. I am a director of the Massachusetts Farmland Bank and 
of several manufacturing corporations. I am member of the National Council 
of the American Judicature Association. 

For two years I served in the office of Brandeis, Dunbar & Nutter, and came 
into personal contact with Mr. Brandeis on legislative matters while in the 
senate. I do not believe that I am prejudiced in his favor, but I do know from 
personal experience that his office maintains an unusually high standard of 
legal ethics. Mr. Brandeis has not been content with being merely personally 
incorruptible, but he and his associates have insisted that the subordinates in 
their office adhere to the same high standard. 

With the exception of a few lawyers in the certain restricted district, I 
believe the sentiment of the Boston bar to be distinctly in favor of the Brandeis 
appointment. 

Yours, very truly. 


Roger Sherman Hoar. 


Boston, Mareh 2, 1916. 


Hon. William E. Chilton, 

Chairman of the Subcommittee on Judiciary, Washington, D. G. 

Dear Sir ; From reports of the testimony already submitted to your commit¬ 
tee appointed to consider the appointment of Louis D. Brandeis to the Supreme 
Court of the United States, I have learned that certain unfavorable opinions 
have been placed before your committee regarding the reputation in this com¬ 
munity of the man you are considering. 

These opinions are to my knowledge not representative of the general opinion 
of the reputation of Mr. Brandeis, and it is for that reason that I take time to 
write to you to inform you of my knowledge regarding the reputation of this 
candidate. 

I am a practicing attorney, having offices in Boston and vicinity. I have had 
brought to my attention on many different occasions the general reputation of 
Mr. Louis D Brandeis. On every occasion that I have heard mention of him 
it has always been a recommendation of Mr. Brandeis, praising him for the 
standard of honesty, trustworthiness, fidelity, and profound knowledge of the 
iaw to which he adheres. All these opinions have been expressed by lawyers, 
members of the same club to which I belong, and who I had reason to believe 
bad personal knowledge and acquaintance with Mr. Brandeis. 

I sincerely hope that Mr. Brandeis will be recommended by the committee 
for appointment to the Supreme Court of the United States. 

Respectfully, yours. 


M. H. Horblitt. 


Hon. William E. Chilton, 

United States Senate, Washington, D. C. 


February 25, 1916. 


Dear Sir: I take the liberty of addressing this communication to you for 
the purpose of indorsing Louis D. Brandeis, who has been nominated by Presi¬ 
dent Wilson as Associate Justice of the Supreme Court of the United States. 

I am a lawyer with offices in Boston, and I have been in active practice for 
eight years. 

I am president of the Associated Young Men’s Hebrew Associations of New 
England, an organization comprising 45 young men’s Hebrew associations 
scattered throughout the New England States, with a total membership of over 
1.5,000 men. In my capacity as president of this organization, for the past two 
years, I have had occasion to travel throughout the district, coming in contact 
with large numbers of our citizens, and I can say that everywhere I have heard 
only the highest words of praise and commendation of Mr. Brandeis. 








NOMINATION OF LOUIS D. BRANDEIS. 


103 


At a number of large public meetings that I have been present, addressed by 
Mr. Brandeis, the reception accorded him far surpassed any that I have ever 
witnessed received by any private citizen. 

Ever since his nomination I have talked to many members of the Massachu¬ 
setts bar, and I have heard the appointment generally discussed. In no in¬ 
stance have I heard anything but approval, and in no instance have I heard 
anything unfavorable. 

Tliere is no question in my mind but that the opposition to his appoint¬ 
ment comes from a very small and narrow circle, and that the opinions that 
they express are their own and not those of the general public or of the large 
majority of the members of the ^Massachusetts bar. 

I heard of Mr. Brandeis even before I became a member of the bar, and 
for the past two years I have come in contact with him personally. He has 
always impressed me as being a man of high ideals and principles, possessing 
a keen and analytical mind and a close student of social and economic prob¬ 
lems. He unquestionably possesses all of the qualifications that should go to 
make of him a great jurist. 

I am, very respectfully, yours, Albert Hurwitz. 


Hon. C. S. Thomas. 


February 24, 1916. 


My Dear Senator : I have known and contacted with Brandeis for over 25 
years and have never known or heard of his being guilty of unprofessional 
conduct. 

As his ability is conceded, it is merely a matter of judicial temperament, and 
that is another term for viewpoint and perspective. He possesses it as much 
as IMilburn or Cromwell or men wlio would be named by them, and very much 
more than A. L. Lowell, president of Harvard University, who, having selected 
a Jewish holy day for examinations last summer, refused to allow Jewish 
students another day for taking the examinations and advised them to dictate 
the work to hired stenographers. 

We need men on the bench who will not measure and limit rights and liber¬ 
ties of this century by precedents and opinions of the mediaeval ages. 

Very respectfully. 


H. J. Jaquith, LL. B. 


February 19, 1916. 

Hon. William E. Chilton, 

Chairman Senate Subeommittee, Washington, D. G. 

Dear Sir: In view of the suggestion made to your committee, that an un¬ 
favorable opinion of Mr. Brandeis held by a portion of this community should 
in itself prevent his confirmation, I take the liberty of stating my dissent from 
this opinion of him and from the position so suggested. Mr. Brandeis’s talents 
and legal learning are undisputed. These, with his wide experience, his study 
of public questions, and especially his readiness and resourcefulness in recog¬ 
nizing and meeting changing industrial conditions, enable him to make a con¬ 
tribution to public service as a Justice of the Supreme Court which possibly 
no other man in the country could make. I have been in the practice of law in 
Boston since 1898, have known Mr. Brandeis during most of that time, and 
have heard his character frequently discussed. While I have known of the 
unfavorable opinion of him entertained by a considerable number of lawyers, 
including men of character and standing, nevertheless, I have not heard from 
lawyers any specific charges of unprofessional or dishonorable conduct made 
with personal knowledge, and I think I have not heard from lawyers specific 
reference to cases, upon which an unfavorable opinion was based, outside of 
those which have been mentioned before your committee. Considering the many 
heated controversies, private and public, in which Mr. Brandeis has been en¬ 
gaged, testimony as to his reputation can have little weight except so far as it 
is shown to rest upon facts. My own acquaintance with Mr. Brandeis for some 
15 years leads me to believe him to be a man honorably and sincerely devoted 
to the public interest. 

Respectfully, yours, 

Eliot N. Jones. 




104 


NOMINATION OF LOUIS D. BKANDEIS. 


Worcester, Mass., March 4, 1916. 


Senator William Chilton, 

Chairman Subcommittee, United States Senate, 

Washington, D. C. 

Dear Sir: During the 12 years I have been in business it has been my good 
fortune to come in personal contact with the Hon. Louis D. Brandeis, whose 
appointment to the Supreme Court is being considered by your committee, and 
it gives me pleasure to state that I have always found him to be a man of the 
highest integrity and ideals. IVIy contact with him and knowledge of him gives 
me every reason to believe him absolutely honest and straightforward in busi¬ 
ness dealings and in his public life. 

Whatever opposition to his confirmation may develop must, it seems to me, 
come either from a very narrow circle of attorneys or else from the interests 
which Mr. Brandeis has necessarily (and not unworthily) antagonized during 
his public career. 

Such opposition certainly does not represent the sound sentiment of the com¬ 
munity, which, to the best of my belief, is strongly in favor of Mr. Brandeis’s 
confirmation. 

For all these reasons, and for the best interests of the commonweal, I trust 
you may speedily report in favor of Mr. Brandeis’s confirmation. 

Very truly, yours. 


Maurice L. Katz. 


801-805 Tremont Building, 

Boston, February 18, 1016. 

Dear Senator Chilton : Respecting the appointment of Hon. Louis D. Bran¬ 
deis to the Supreme Court of the United States, I want to say as a lawyer, 47 
years old, as a member of the bar association of the city of Boston, and as a 
member of the American Bar Association, that I consider Mr. Brandeis not only 
an able attorney, but a man above reproach, who will add ability, integrity, 
grace, and dignity to the great bench to which he has been appointed. He Is 
an honest man, conscientious to a marked degree, who has raised himself above 
the sordidness and show of mere wealth, and looks to the character and worth 
of the individual as the better elements of our citizenship aside from mere 
accumulation of cash. Louis D. Brandeis is a man with a vision of the Amer¬ 
ican people and the Nation’s possibilities. He will hew to the line for the future 
of the great Republic and the rights of all of its citizens. 

Perhaps I should add as a means of identifying myself, that I served three 
years as a member of the Boston school committee, a board of five; and I am 
now a member of the Boston Finance Commission, a board of five, appointed by 
the governor of our Commonwealth to supervise the finances of the city of 
Boston. 

I am, respectfully, yours, James P. Magenis. 

Hon, William E. Chilton. 

Chairman Subcommittee, Washington, D. C. 


Hon. William E. Chilton, 

United States Senate, Washington, D. C. 


February 18, 1916. 


Dear Sir: I venture to write to you on behalf of Louis D. Brandeis and ex¬ 
press the hope that his appointment may be confirmed. 

I have been a member of the IMassachusetts bar since 1902 and am a member 
of the Boston Bar Association and the Massachusetts Bar Association. For the 
last 10 years I have been prominently identified with labor interests, and have 
repre.sented labor unions and the American Federation of Labor officially as 
their attorney during practically all that time. In the course of my practice I 
have had occasion to meet Mr. Brandeis professionally many times, and from 
the standpoint of labor I do not hesitate to say that his conduct has been 
admirable. He has been fearless in his championship of the people’s'rights 
and has never hesitated to take up the cause of a labor union or even of^un- 
organized workers when he thought that cause was just. He stands verv high 
in the estimation of the labor men of New England, and I know of nothing 
which would afford them greater satisfaction than his confirmation as a iud<-(^ 
of the United States Supreme Court. ' 









NOMINATION OF LOUIS D. BKANDEIS. 


105 


I venture to say that most of his enemies have been made by his champion¬ 
ship of the people’s rights, and I know of no instance where a whisper has been 
raised against him by the “ people ” themselves. I am very sure that he will 
make a strong, able, fearless, and impartial judge, and that, high and august 
as the United States Supreme Bench is, Louis D. Brandeis would grace it. 

Yours, very truly, 

Frederick W. Mansfield. 


March 2, 1916. 

Hon. W. E. Chilton, 

Chairman Subcommittee, United States Senate, Washington, D. C. 

Dear Sir: As a member of the Massachusetts bar of many'years’ standing, I 
consider it my duty to express my opinion regarding the appointment of Louis 
D. Brandeis to the Supreme Court of the United States. That I am not in¬ 
fluenced by political motives or partisan considerations is evidenced by the fact 
that I am and always have been a Republican. 

It is, however, a pleasure to advocate the confirmation of a lawyer who 
possesses not only legal ability of the highest order but also a judicial mind 
and foresight such as was possessed by the framers of the Constitution of our 
country. His untiring efforts in behalf of the rights of his fellow citizens and 
indomitable courage in opposing wrong has won him hosts of ardent friends, 
and, naturally, bitter enemies. 

The general sentiment of the public in Massachusetts is unquestionably with 
Mr. Brandeis, and with the exception of the interests which have reason to 
fear his unflinching and unswerving fidelity to the public welfare, it is the de¬ 
sire of Massachusetts that he be confirmed. The confirmation of Mr. Brandeis 
as a justice of the United States Supreme Court would be a distinct addition 
in character, legal knowledge, and judicial ability, and will surely add to the 
respect and esteem in which this highest judicial body of the Nation is held by 
the great masses of its citizens. 

Respectfully, yours, 

Henry I. Morrison. 


February 23, 1916. 

Hon. William E. Chilton, 

Chairman o/ Subcommittee on Judiciary, 

United States Senate, Washington, D. C. 

Dear Sir : I wish to record my earnest desire that the appointment of Mr. 
Brandeis as a judge of the Supreme Judicial Court be confirmed. 

I am not and never have been a Democrat, but write because from some per¬ 
sonal knowledge of what Mr. Brandeis has done I think he is inevitably quali¬ 
fied for the position. 

Respectfully, yours, 

Frank H. Noyes, 

73 Tremont Street, Boston, Mass. 


March 1, 1916. 

Hon. William E. Chilton, 

Chairman Subcommittee, United States Senate, 

Washington, D. C. 

Dear Sir: I am sending this letter as an indorsement of Louis D. Brandeis, 
who has been nominated as a Justice of'the United States Supreme Court. 
I have practiced in Boston for about eight years and have always been identi¬ 
fied as a member of the Republican Party. j. j.- 

The general opinion concerning Mr. Brandeis which has come to my attention 
and knowledge has been that he is one of the ablest attorneys practicing in 
this country. I have never heard his character assailed or integrity ques¬ 
tioned by any except a few of the financial interests who may have suffered 
somewhat by Mr. Brandeis’s activity as a friend and counsel of the general 

^^r^^ncerely trust that Mr. Brandeis will receive the confirmation of the 
United States Senate which he justly deserves. 

Yours, respectfully, Levenson. 





106 


NOMINATION OF LOUIS D. BEANDEIS. 


March 2, 1916. 

Hon. William E. Chilton, 

Chairman Subcommittee, United States Senate, 

Washington, D. G. 

Dear Sir : I wish to record my indorsement of Louis D. Brandeis, recently 
nominated as a Justice of the United States Supreme Court. As a member 
of the Massachusetts bar for about 14 years I have had some opportunity of 
judging Mr. Brandeis, both from a professional and personal standpoint, and 
I wish to say that I have nothing but the highest regard for his integrity, 
honesty, and ability. I feel sure that his many years of activity and practice 
before all courts and commissions of this country have given him a vast ex¬ 
perience and unquestioned judicial temperament. 

My residence is in Chelsea, Mass., the home city of Congressman Ernest W. 
Roberts. I have always been identified as a member of the Republican Party, 
having had the privilege of being a member of the Republican city committee 
and a member of the school board of the city of Chelsea for several years. 
I am now representing the fifth Suffolk district as a member of the Massa¬ 
chusetts Legislature. 

I am sure that any opposition which may be brought to your attention 
against the confirmation of Mr. Brandeis comes from a small circle of people 
who are biased either because of narrowmindedness or because they may have 
suffered financially from Mr. Brandeis’s activity in the public welfare. 

Trusting that Mr. Brandeis will receive the confirmation of the United 
States Senate, I am, 

Yours, very respectfully, 


Joseph M. Levenson. 


Boston, March 3, 1916. 

Senator William E. Chilton, 

Washington, D. C. 

Dear Sir : I graduated from Harvard College in 1903 and from the Harvard 
Law School in 1906. I passed the Massachusetts bar examination in 1905 and 
have been practicing at the Suffolk bar ever since. 

While at the law school I heard of the fame of Louis D. Brandeis, Esq., and 
from the time I left the law school to this date I have had considerable oppor¬ 
tunity to watch Mr. Brandeis grow in reputation as a lawyer and as a man. 
1 am happy to be able to say that his growth in both respects in the estimation 
of the community has simply been marvelous. He certainly has been one 
wonderful example and inspiration for all members of the bar and all other 
persons in the community. I have never heard any criticisms derogatory to 
his character or reputation. His wonderful and repeated successes in" the 
most complicated cases and his untiring efforts in behalf of the people at the 
sacrifice of considerable time and expense to himself have endeared him to the 
country at large. 

It is no wonder that our honorable President of these United States has seen 
fit to appoint him as the one man fit and able to occupy the exalted position 
of Associate Justice of the Supreme Court of the United States. 

Can it be said that our beloved President has been influenced by anything 
outside of the highest motive for the welfare of all the people in his appoint¬ 
ment of Mr. Brandeis? The whole record of Mr. Brandeis’s career must cer¬ 
tainly have been reviewed by the President before he exercised the privilege 
and right under the Constitution to fill the vacancy on the Supreme Bench. 

It seems to me that the'opposition to Mr. Brandeis’s confirmation comes from 
persons who are envious or jealous of his remarkable rise in the world or to 
the fact that Mr. Brandeis has so often and so successfully championed the 
cause of the common people against encroachments by monopolists and monopo¬ 
listic combinations. 

I humbly join in the almost universal desire that our President’s appointee 
be unanimously confirmed. 

I have the honor to be, respectfully, yours. 


Abraham Leventall. 








NOMINATION OF LOUIS D. BKANDEIB. 


107 


Maboh 7, 1916. 

Hon. William Chilton, 

Chairman of the Senate Subcommittee, Washington, D. 0 . 

Deab Sib: As a member of the Women Lawyers’ Association of the State of 
Massachusetts and as a practicing attorney before the bar of this State I 
earnestly advocate the confirmation of the nomination of Louis D. Brandeis for 
the United States Supreme Judicial Court. 

Trusting that you will recognize his entire fitness for that great and honor¬ 
able position, I am, 

Yours, truly. 


Rosamond H. Levy. 


Mabch 1, 1916. 

Senator William E. Chilton, 

Chairman Subcommittee, United States Senate, 

Washington, D. C. 

Dear Sir: Having made a specialty of the patent laws of this country and 
foreign countries, for the past five years our office has been doing a great deal 
of associate work on patent matters with the general-law practitioners in and 
about this city. 

We are personally acquainted with Mr. Louis D. Brandeis, the President’s 
nominee for the vacancy in the Supreme Court of the United States of America, 
and have, since the question of his confirmation has arisen, discussed his quali¬ 
fications for that office with many of our clients, who are prominent members of 
the Massachusetts bar. We find their opinions to be absolutely in his favor and 
are satisfied that the opinions expressed before your honorable committee, as 
we understand them, by a few attorneys from Boston, to the end that the repu¬ 
tation of Mr. Brandeis is questioned throughout the Massachusetts bar, are posi¬ 
tively without foundation. 

We sincerely urge the confirmation of Mr. Louis D. Brandeis as Associate 
Justice of the Supreme Court of the United States. 

Very respectfully. 


David Lichtenstein. 
Benjamin H. Chertok. 


March 8, 1916. 

Senator William E. Chilton, 

Chairman Subcommittee, United States Senate, 

Washington, D. C. 

My Dear Senator: May I express my sincere hope that your committee will 
report favorably on the confirmation of Louis D. Brandeis as associate justice 
of the Supreme Court of the United States. 

As a member of the Massachusetts bar and as president of the Associated 
Young Women’s Hebrew Associations of New England I have had occasion to 
meet Mr. Brandeis frequently and have found him to be a man of the highest 
integrity. 

I am certain that as a member of the Supreme Bench of the United States 
Mr. Brandeis will fill the office honorably. 

Yours, very truly, 

S. l\r. liTPNER. 


Boston, Mass., March 3, 1916. 

Jacob J. Kaplan, Esq., 

161 Devonshire Street, Boston, Mass. 

Dear Mr. Kaplan : Inclosed herewith find copies of letters in the Brandeis 
matter, which I received from Harry H. Guterman, Henry I. Morrison, David 
Lichtenstein, Benjamin H. Chertok, Harry Silverman, Joseph H. Samuel, Flor¬ 
ence F. Sullivan, Israel Ruby, Isaac Harris, Elisha Greenhood, Max M. Fritz, 
A E Pinanski, Louis Abrahams, William E. Blatt, Isaac H. Greenburg, Harry 
E Dubinsky, Edward E. Ginsburg, Albert Hurwitz, Eugene M. Schwarzenberg, 
Adolphus M. Burroughs, Samuel L. Silverman, George E. Gordon, Samuel H. 
Borofsky, Nathaniel Golden, Maurice Bergman, Emmanuel Cohen, Samuel L. 
Wolfson, Franklin M. Cohen. 

Very truly, yours, 


David A. Lourie. 









108 


NOMINATION OF LOUIS D. BKANDEIS. 


February 18, 1916. 

Hon. William E. Chilton, 

Chairman Subcommittee, United States Senate, 

Washington, D. C. 

Dear Sir : As a member of the Massachusetts bar for 26 years, 23 of which 
have been spent in general practice, and 3 years as assistant corporation 
counsel for the city of Boston, and having known and had professional deal¬ 
ings with the firm of Brandeis, Dunbar & Nutter, of which Louis D. Brandeis 
is the senior member, I indorse his appointment for confirmation as an Asso¬ 
ciate Justice of the Supreme Court of the United States. I believe that Mr. 
Brandeis will bring to the high office to which he has been nominated ability, 
learning, and that sense" of unswerving and impartial justice which has ever 
been the keystone in the arch of our Government. 

Yours, respectfully, 

Joseph P. Lyons, 
Assistant Corporation Counsel. 


Boston, Mass., March 3, 1916. 


Hon. William E. Chilton, 

Chairman Judiciary Subcommittee, United States Senate, 

Washington, D. C. 

Dear Sir : By way of introducing myself, I have been in the general practice 
of law for about 10 years, and have been identified with the Democratic Party 
since 1896; have also been a delegate to the Democratic National Convention 
at Denver and an alternate delegate to the Baltimore convention. I am at 
present connected with the law department of the city of Boston, having charge 
of the “ Workmen’s compensation ” cases. 

My practice and connections have brought me in contact with a very large 
majority of the practicing lawyers of Boston and Massachusetts, generally, and 
I am delighted to say that I find the reputation of Louis Brandeis to be ex¬ 
cellent, as far as honesty and ability are concerned. 

I most heartily approve of his confirmation as a member of the United 
States Supreme Court. 

Respectfully, yours. 


H. Murray Patsukki. 


Hon. William E. Chilton, 

United States Senate, Washington, D. G. 


February 28, 1916. 


Dear Sir : I should like to add my indorsement to the nomination of Louis 
D. Brandeis, Esq., as Associate Justice of the Supreme Court of the United 
States. 

I am a graduate of Harvard College, 1908, and Harvard Law School, 1910, 
and have been a member of the Masschusetts bar since January, 1910. For 
two years after leaving the law school I was in the legal department of the 
Boston Elevated Railway Co. and for the past three years have been assistant 
to the general attorney of that company and engaged in the general practice of 
^ the law. I have known Mr. Brandeis personally for the past seven or eight 
' years and I believe that I am familiar with at least his public career of the 
past 20 years. Although I have been intimately interested in the opposite side 
of many public, particularly franchise questions in which Mr. Brandeis has 
taken an important part. I have always felt and do still feel tht he is a man of 
absolute integrty, exceptional ability and mentality, and unusual fairness 
I believe that I voice the general sentiment of the younger members of the 
bar when I say that Mr. Brandeis is a shining example of the unselfish, public- 
spirited citizen, earnest advocate, and profound scholar. 

Very truly, yours. 


W. E. PiNANSKI, 

Assistant to the General Attorney. 


February 16, 1916. 

Hon. William E. Chilton, 

United States Senate, Washington, D. C. 

Dear Sir: I trust that there is no impropriety in the liberty I am taking 
in writing you this letter indorsing Louis D. Brandeis as an Associate Justice 
of the Supreme Court of the United States. 





NOMINATION OF LOUIS D. BRANDEIS. 


109 


I am now and have been practicing law in Boston for 16 years. I was assist¬ 
ant district attorney in Suffolk County in 1909, and in 1906 was appointed a 
special justice of the Boston juvenile court, a life appointment. 

I have known Mr. Brandeis, or of him, since I commenced the practice of 
the law. I have had matters connected with his office, although I have not 
dealt with him personally therein. 

It is not unnatural that many should differ with Mr. Brandeis. His career 
has been exceedingly active and fruitful, and it would be impossible to expect 
that his acts should meet with the commendation of all. I can not believe, 
however, that the present opposition is viewed with favor by the great mass 
of our community. To them Mr. Brandeis towers as a man of great intellect 
and energy, who has unselfishly served the people, and who has accomplished 
large constructive good in their behalf. 

I believe that Mr. Brandeis is preeminently fitted for the position, and, as 
far as one can foresee, will add genuine strength to the Supreme Court. The 
President has assumed the responsibility of making the appointment, and I 
believe he has exercised sound judgment. I hope the United States Senate will 
see fit to sustain the President in the matter. 

Yours, very truly. 


Philip Rubenstein. 


Boston, March 2, 1916. 

Hon. William E. Chilton, 

Cliairinan Subcommittee, United States Senate, 

Washington, D. C. 

■ My Dear Sir : Permit me to express my approval of the nomination of 
Louis D. Brandeis, Esq., as a member of the Supreme Court Bench of the 
United States. I sincerely trust that your committee will see fit to report 
favorably on the nomination to the honorable Senate. 

I have been engaged in the practice of law for three years, and during that 
time I have had occasion to discuss the honesty, integrity, and ability of Louis 
D. Brandeis, Esq., at various times, and the sentiment of opinion always ex¬ 
pressed was that he was a credit to our profession, and it is my sincere belief 
that his .appointment to the Supreme Court Bench will add to the same a man 
who had not only himself at heart but his country and people. 

Sincerely, yours, 

Israel Ruby. 


Boston, March 2, 1916. 

Senator William E. Chilton, 

United States Senate, Washington, D. C. 

Dear Sir : In reference to the confirmation of Louis D. Brandeis as a member 
of the Supreme Court of the United States, now pending before your committee 
for its consideration, I desire to be placed on record as follows: 

I might say at the outset that I am in my fifth year at the bar, active in prac¬ 
tice, and of the large number of lawyers with whom I have come in contact, a 
very large majority are in favor of confirmation of the nominee. 

I do not personally know him, but so far as I can ascertain—and I have dis¬ 
cussed the matter with a number—his reputation at the bar for ability, ef¬ 
ficiency, and integrity is good. 

I desire to be recorded in favor of confirmation. 

Very truly, yours, Joseph H. Samuel. 


[Law offices of Eugene M. Scliwarzenberg and Edwin F. Schwarzenberg.] 


Boston, Mass., February 25, 1916. 

Senator William E. Chilton, 

Chairman Subcommittee, United States Senate, 

Washington, D. C. 

Dear Sir: As a member of the bar of 12 years’ standing and one who has 
participated somewhat in civic life, having been chairman of the good govern¬ 
ment association of the town in which I lived for several years, as well as a 
member of the Republican town committee and town council, I feel it my duty 
to write to express my position on the treatment being accorded to Mr. Louis D. 
Brandeis. 




no 


DOMINATION OF LOUIS D. BRANDEIS. 


I have known Mr. Brandeis, both socially and professionally, for upward of 
20 years, and have had a great many dealings with him personally and with his 
office, and have always found him conscientious, upright, and a man of highest 
integrity, high ideals, and fine ethics, besides which his ability can not in the 
least degree be impugned. 

I wish to express my unqualified approval of his appointment as a member of 
the United States Supreme Court, believing that his appointment will add dig¬ 
nity and strength to that body. It is my belief, from what conversations I have 
had with other attorneys, that the only opposition to him in this section comes 
from a very narrow circle who are allowing selfish motives to warp their judg¬ 
ment. 

With the sincere wish that the action of the committee will be favorable to Mr. 
Brandeis, I am. 

Yours, respectfully, -. 


March 3, 1916. 


Senator William E. Chilton, 

Chairman of the Suhcomniittee, United States Senate, 

Washington, D. C. 


Dear Sir: It is with a great deal of regret that I note the opposition against 
the confirmation of Louis D. Brandeis as Associate Judge of the Supreme Court 
of the United States. Personally, I think it is a misfortune to harass and 
malign a man who, to my judgment, in the words of Shakespeare, “ is above 
suspicion.” 

I have practiced law since 1904, and have had more or less to do with the 
office of Brandeis, Dunbar & Nutter, and there never came a time that I could 
find any fault with the treatment I received from that office. 

Mr. Brandeis has been generally regarded as a man of great legal ability. 
Not only is he recognized as a leader at the bar, but is known as a man who has 
given a great deal of his time to work for the public good, and is, in a sense, 
accepted as a leader of men. 

His honesty, character, ability, and his general and judicial temperament 
has never, to my mind, been questioned. Personally, I believe that those who 
oppose him do so not because he lacks ability or honesty, but because they 
recognize the superior man. 

I believe that this country needs the service of a man of this type, and I am 
sure that time will make those who now oppose him ashamed of their conduct. 

I sincerely hope that the committee will report favorably upon his con¬ 
firmation. 

Respectfully, yours. 


Samuel Seligman. 


March 2, 1916. 

Hon. AVilliam E. Chilton, 

Washington, D. C. 

Sir : I most respectfully urge the confirmation of Louis D. Brandeis, Esq., as 
an Associate Justice of the United States Supreme Court. His sterling char¬ 
acter, unquestioned ability, fearlessness when fighting for a just cause, and 
sincerety of purpose in protecting the weak and oppressed are a few of his 
qualifications which make him eminently fit for this position which he will 
hold with credit to himself and honor to his country. 

Respectfully, yours, 

Harry Silverman. 


[Samuel L. Silverman, 40 Court Street, Boston.] 

February 25, 1916. 

Senator William E. Chilton, 

Chairman Subcommittee, United States Senate, 

Washington, D. C. 

Dear Sir : The nomination of Louis D. Brandeis, Esq., of Boston, as Associate 
Justice of the Supreme Court of the United States is, in my opinion, one of the 
best nominations that could be made. 

I have been a member of the Massachusetts bar since 1899, and I have yet to 
hear any objection to Mr. Brandeis. It may be that I do not come in contact 







NOMINATION OF LOUIS D. BEANDEIS. 


Ill 


■with that class of attorneys who object to him. The feeling among the every¬ 
day members of the bar is that the nomination is a good one and will be a great 
credit to the United States. 

I have had some business with Mr. Brandeis’s office, and have found them 
fair and square. 

I have served as a member of the Republican State Committee of Massachu¬ 
setts for two years, and I have in past years actively participated in politics. 

If you know anything about conditions in Boston you will know that the 
attorneys who oppose Mr. Brandeis are of a certain class who oppose every¬ 
body unless they come within their circle. 

Very truly, yours. 


Samuel L. Silverman. 


Boston, March 2, 1916. 


Senator William E. Chilton, 

United States Senate, 

Washington, D. C. 

Dear Sir : I am interested in the confirmation of Louis D. Brandeis for the 
office of Associate Justice of the Supreme Court of the United States. 

In the outset let me state that I am a practicing lawyer and have been in 
active practice for 22 years, and during that time have had daily business rela¬ 
tions with a great many lawyers, business men, and a representative element of 
the general public of this community. From my experience and personal knowl¬ 
edge I find the bar of this city has among its members several men that seem 
to possess very deep-seated prejudices along certain lines, that are the result of 
views expressed between themselves and within a somewhat limited circle. For 
reasons satisfactory to themselves, Mr. Brandeis has incurred the active oppo¬ 
sition and personal ill-will of these men. 

The standard that seems to have been set by these men for the general bar is 
of their own creation, unwritten, and, to my mind, very artificial and wholly 
out of sympathy with the rank and file of the 3,000 lawyers that practice before 
the courts of this city. 

I do not claim to know’ the candidate, but can state for the information of 
your committee that the reputation and common speech of other law’yers and 
business men of this city consider Mr. Brandeis as a man who has elevated his 
character by his lofty and upright principles, according to a standard of hon¬ 
esty and reasonable application and wffio as a law’yer and practicing attorney 
has distinguished his profession by the result of his achievements. 

I believe such a man to be fully capable of calmly \veighing matters that 
might come before him for judicial interpretation, and a man that would do 
full credit to the high office to wffiich he has been appointed. 

Very truly, yours. 


F. F. Sullivan. 


February 24, 1916. 

Hon. William E. Chilton, 

United States Senate, Washington, D. C. 

Dear Sir: I want to indorse President Wilson’s nomination of Louis D. 
Brandeis for Associate Justice of- the Supreme Court of the United States. I 
w’as a member of the Massachusetts Senate in 1907 and 1908 and was the Demo¬ 
cratic candidate for governor in 1908 and 1909 and was also a delegate to the 
Democratic national convention in 1904. 

I have been practicing law for 23 years, have always been a Democrat, and 
have known Mr. Brandeis for 15 years. I have never been associated with him 
in legal matters or causes, but have frequently been opposed professionally to 
his firm. While in the senate I was actively interested wuth him in the estab¬ 
lishment of savings-bank insurance and voted for the bill which finally became 

B IclW. 

I think that he is peculiarly w’^ell fitted and qualified for the position of Asso¬ 
ciate Justice of the United States Supreme Court. His knowledge of law and 
his breadth and grasp of great public and social questions remarkably fit him 
for such a high place. I think he has been very much misunderstood by some 
members of the bar here. 

I earnestly hope that his nomination will be confirmed. 

Yours, very truly, 


James H. Vahet. 




112 


NOMINATION OF LOUIS D. BKANDEIS. 


Boston, Mass., March 3, 1916. 


Hon. William E. Chilton, 

Chairman Subcomtnittee, United States Senate, 

Washington, D. C. 


Dear Sir : In the matter of the appointment of Louis D. Brancleis I wish, as 
a member of the bar of Massachusetts, to express my confidence and trust in 


Mr. Brandei.s’s high character and great ability. 

In the city of Revere, where I have my residence, I mix in politics and be¬ 
long to a number of social clubs and political organizations. Discussing Mr. 
Brandeis’s appointment, the unanimous opinion seems to be that the gentlemen 
from Boston Avho are opposing him belong to a class who are known as “ blue 
bloods.” The people hark back to a time in Massachusetts, not so very long 
ago, when Catholics of Irish descent met with similar opposition from the same 
class wdio are now opposing Mr. Brandeis. They believe that Mr. Brandeis 
and men of his race and religion are now facing the same kind of prejudice in 
their fight for recognition, not of “blue blood” but red blood, courage, ability, 
and character. 


The people, and especially the young lawyers of Boston, who are perhaps 
more familiar with Mr. Brandeis’s career and attainments, are w’aiting with 
confidence for the confirmation of Mr. Brandeis as a demonstration that the test 
for high public office in Washington is the test applied by Mr. Wilson and is 
not influenced by class, race, or religion, but is determined entireiy by character 
and ability for the office. 

Very truly, yours, 

P. A. Walsh. 


February 16, 1916. 

Hon. William E. Chilton, 

United States Senate, Washington, D. C. 

Dear Sir : In view of the present discussion as to Mr. Louis D. Brandeis, will 
you permit me, as one who has known Mr. Brandeis ever since we were together 
in the Harvard Law School, to say in brief that, although I have not for many 
years been in active practice, I have had an opportunity to know something 
of Mr. Brandeis’s work in public matters, and that he has shown, in my judg¬ 
ment, not only brilliant ability but public spirit, breadth of view, and generosity 
both in the matter of time and money in helping on the public work which he 
has undertaken. As to his integrity, I have entire confidence in it, and would 
intrust my owm affairs to him without hesitation. 

Respectfully, yours, 

George Wiggles worth. 


March 4, 1916. 

Hon. William E. Chilton, 

Chairman Subcommittee, United States Senate, Washington, D. C. 

Dear Sir : I desire as a practicing attorney of this city, and in the interest 
of the community, to add my voice in commendation of the character and 
ability of Mr. Louis D. Brandeis, whose appointment as Justice to the Supreme 
Court is now awaiting the consideration of the Senate. 

I sincerely trust he will be confirmed. I have followed Mr. Louis D. 
Brandeis’s career with great interest, his professional and public activities are 
known by all men the country over, and I believe there is no one in point of 
ability or in character more fitted than he to strengthen the great court to 
which he has been appointed. 

The reported sentiment of the Boston bar as unfavorable to Mr. Louis D. 
Brandeis is, I think, a great perversion of the truth, and it is limited almost 
wholly to those who have clients identified with vested interests and who are 
opposed to the measures advocated by Mr. Louis D. Brandeis. The disinter¬ 
ested members of the bar by an overwhelming majority respect him as a man 
of sterling worth and splendid ability. 

Volumes might be written of his worth, but the main facts have already 
appeared in evidence, and I believe they should be conclusive to his remarkable 
worth and ability. It is certain that the great masses of the people, both 
lawyers and laity, will rejoice his confirmation, which is confidently expected. 

I have the honor to remain. 

Very respectfully, yours, 


Samuel J. Witkin. 




NOMINATION OF LOUIS D. BRANDEIS. 


113 


[Law offices of Samuel L. Wolfsou, 40 Court Street, Boston, Mass.] 

February 29, 1916. 

Senator William E. Chilton, 

Chairman subcommittee, United States Senate, 

Washington, D. C. 

Dear Sir : I am an A. B., Harvard University, and LL. B., Boston University, 
and have been a member of the Massachusetts bar, Suffolk County, since 1913 
and United States district court bar since 1915. 

I have been for a great many years an ardent admirer of Mr. Louis D. Bran- 
deis, because I believe him to be one of the foremost Americans of to-day and 
typical of American principles and democracy. I heartily approve his appoint¬ 
ment to the United States Supreme Bench because I feel that he will stand up 
for what is equitable and just at all times and will make an excellent interpreter 
of the laws because of his vast legal experience. 

I am of the opinion that the opposition to his confirmation is confined to a 
very small sphere, composed only of those who bear him a personal grudge 
and see a possible opportunity at hand to satisfy themselves, and it does not 
represent the voice of the people. 

Respectfully, yours. 


A few miscellaneous letters from law^^ers outside of Boston or 
from nonlawyers: 

JMarch 30, 1916. 

Hon. William E. Chilton, 

United States Senate, Washington, D. C. 


Dear Sir : I am taking the liberty of mailing you under another cover copy 
of an article concerning Louis D. Brandeis, whom I have had the honor of 
knowing a great many years. 

As a citizen of Massachusetts and a former candidate for the nomination of 
governor and former chairman of the commission of efficiency and economy, I 
beg to say that in my opinion there is no living American who is more honest 
and more fearless, and no man that I know has better judgment or is more 
patriotic. 

There are many people in Massachusetts and elsewhere throughout the coun¬ 
try who believe that Brandeis resembles Abraham Lincoln in appearance and 
in character. 

Yours, sincerely. 


Norman H. White. 


February 9, 1916. 


Hon. George E. Chamberlain, 

Senate Chamber, Washmgton, D. C.: 

Lh'ge the confirmation of Brandeis because he is able, just, and progressive. 
One of the best appointments President could have made. No one opposing 
here but reactionaries, special-privilege beneficiaries, and big-business repre¬ 
sentatives. Opponents here include all who were applauding in advance nomi¬ 
nation of Taft as the graceful thing to do. 

William U’Ren. 


February 19, 1916. 

Hon. William E. Chilton, 

Chairman Senate Subcommittee. 

Dear Sir: The newspapers report that certain gentlemen from this vicinity 
have given your committee an unfavorable estimate of the character of Mr. 
Louis D. Brandeis and of his standing in the community. 

I think it is fair to say that the hostile estimates attributed to these gentle¬ 
men are not unexpected and occasion little surprise in his locality. We are 
accustomed to having honorable men, of strong convictions and divergent inter¬ 
ests, differ painfully in their estimates of one another. But I think it is also 
fair’ to say that these critics of Mr. Brandeis can not speak for the community 
at large. 

Ex. Rept. 2, pt. 1, 64-1-8 







114 


NOMINATION OF LOUIS D. BEANDEIS. 


I, for example, have known both Mr. Brancleis and some of his critics for 
many years. Part of this time I was a member of the faculty of Harvard Univer¬ 
sity, as teacher of political economy and sociology; subsequently colleague and 
successor of the late Edward Everett Hale as minister of the South Congrega¬ 
tional Society of Boston. The longer I have known Mr. Brandeis the more I 
have admired him, not only for his personal qualities but also for his knowledge 
of economic conditions; his insight and impartiality in regard to the relations 
of capital and labor; his public spirit and devotion to the general welfare. 

I regard him as one of the most conscientious members of his great profes¬ 
sion ; as one of the sanest, wisest, and most trustworthy citizens of this 
Commonwealth. 

I was glad when the President nominated him to the Supreme Court; first, 
because I, like many others, am persuaded that he measures up to the highest 
standards of moral character, of professional equipment, of judicial temper, of 
patriotic devotion; second, because I believe he will bring to his high office a 
statesmanlike grasp of the fundamental principles and problems of our social, 
political, and industrial life. 

Sincerely, yours. 


Edward Cummtngs. 


P. S.—I think I am not identified with Mr. Brandeis either in race, religion, 
or political party. 


Andover Theological Seminary, 

Cambridge, Mass., February 17, 1916. 

Senator William E. Chilton, 

Chairman Subeommittee of the Senate. 

Dear Sir: May I be allowed the privilege of expressing to you my apprecia¬ 
tion of the character and service of Mr. L. D. Brandeis and my judgment of 
his eminent fitness for the great position for which our honored President has 
chosen him. I have known l\Ir. Brandeis for more than 20 years; I have 
heard him speak on many occasions on large questions, and have been brought 
into personal relations with him from our mutual interest in the welfare of 
workingmen. He has impressed me profoundly as a man of sterling charac¬ 
ter, absolutely devoted to the common welfare, thoroughly convinced that 
righteousness alone exalteth a nation, and so eager that good be accomplished 
that he willingly works in the background while others receive the com¬ 
mendation. 

In view of the fact that great social problems are coming more and more 
to the Supreme Court, it seems to me that he is eminently fitted for wise and 
humane judgment on these and other matters. From my contact with various 
classes of men in the community, I judge that his selection strikes others, with 
the exception of a small minority, as favorably as it does me. 

Yours, respectfully, 

Daniel Evans. 


Boston, Mass., February 25, 1916. 

Senator William E. Chilton, 

Chairman Subeommittee, United States Senate, 

Washington, D. C. 

Dear Sir: I am writing you to throw what light I can upon the qualifica¬ 
tions of Mr. Louis D. Brandeis for service in the Supreme Court. I have 
never had any business relations with Mr. Brandeis, but have been a close 
observer of his activities, both locally and nationally. 

While I have no authority to speak for any organization with which I am 
connected, I think it fair to say that because I am connected with various pub¬ 
lic organizations in this vicinity I have come to know what kind of a man 
Mr. Brandeis is. As one of the organizers’and president of the United Improve¬ 
ment Association, an affiliation of the various local associations of citizens 
throughout Boston, I have been associated with Mr. Brandeis and have seen 
his breadth of view and self-sacrificing contributions of time and money in 
the interests of the best civil development. As superintendent of the Wells 
Memorial Institute, I have become acquainted with his energetic and again 
self-sacrificing work in the upbuilding of our Masssachusetts Savings Bank 



NOMINATION OF LOUIS D. BRANDEIS. 


115 


J-ife Insurance system. As director of the Boston Chamber of Commerce and 
Jin active member of various of its committees, I have had an opportunity 
to know of Mr. Brandeis’s activities in connection with the New York, New 
Haven & Hartford Railroad. He has received much censure for his actions in 
this connection, and I believe that much of the opposition to him now is based 
upon that. Let me assure you that such opposition is confined to a very small 
group of people, though the members of that group are wealthy men 
whose voices are heard afar. Because Mr. Brandeis discovered the evil 
financial and managerial situation of the New Haven Railroad and 
warned the public of it and of the need of an early and drastic remedy, 
he has been blamed as only the authors of the situation deserve. He is 
charged with the wrecking of the New Haven Railroad when what he really 
did was the very useful service of warning us that the railroad would be 
wrecked unless we took effective means to prevent such a catastrophe. One 
of our most prominent business men said to me very recently that he believed 
the opposition to Mr. Brandeis regarding the New Haven activities, which 
comes largely from the banking interest, is due to the fact that he discovered 
and made public the real situation of affairs before the bankers themselves 
had discovered it. It is my deliberate opinion that had Mr. Brandeis not made 
public the facts regarding the New Haven situation that debacle might have 
been even more serious than it is. 

Finally, may I say that I l>elieve the personal charges against Mr. Brandeis 
are due to the fact that he refuses to continue as counsel for a company after 
he becomes convinced that that company is working contrary to the public 
interest and demands his assistance in securing results which work against 
essential justice? Such a position is not in keeping with the general practice 
in the legal profession and is not required by legal ethics. In my opinion, 
however, it is a step in advance of what is absolutely required by the ethics 
of the profession; and I believe that in taking such a position he is standing 
for the higher morality rather thnn the lower ethics of the particular group. 
Not being a lawyer, I can not express any opinion of value as to Mr. Bran¬ 
deis’s purely legal contribution to the Supreme Court, but I do know tliat his 
intimate knowledge of the actual living conditions and problems of a great 
majority of the inhabitants of this country will be of inestimable value in 
giving a human and humanitarian balance to the views of the Supreme Court. 

Respectfully, yours, 

William C. Ewing. 


60 State Street, Boston, Mass., 

February 17, 1916. 


Hon. William E. Chilton, 

Chairman of Subcommittee, 

United States Senate, Washington, D. C. 


Dear Senator : I write to urge the pending confirmation of Louis D. Bran¬ 
deis. I am one of those citizens of Massachusetts who conceive Mr. Brandeis 
to be a great civic asset and potentially a distinct national asset. To many 
minds he stands as the embodiment of popular intelligence and courage striv¬ 
ing for popular rights against selfish corporate aggression. He has a definite 
record of public achievement unequaled, I believe, by any other member of the 
bar in this State. 

He is e.ssentially a constructive and conservative element in the community, 
in that he believes in and assists orderly and evolutionary social progress. 
He is a man with a social vision, but never visionary; a useful servant of the 
public, but never servile; a profound and brilliant lawyer, who knows that 
historically the best law is ever expressive of the noblest social aspirations. 

Faithfully, 


William Lloyd Garrison, Jr. 


February 17, 1916. 

Hon. Willia:m E. Chilton, 

Chairm.an Subcommittee, 

United States Senate, Washington, D. 0. 

Dear Sir: Louis D. Brandeis is, in my opinion, absolutely devoid of all 
selfish interests. I do not intend to presume upon his dignity by defending 




116 


KOMIXATION OF LOUIS D. BEANDEIS. 


his character, but wisli to say that during the last 10 years in which he has 
served as our counsel we have found him to be both conservative and construc¬ 
tive in his advice. 

There are embodied in Mr. Brandeis so many of the essential elements that 
fit him for the Associate Justice of the Supreme Court it is inconceivable that 
any testimony presented should influence your committee to the extent of rob¬ 
bing this country of the power and quality of justice that Mr. Brandeis will 
administer. 

It is my belief that we voice the opinion of the conservative element of the 


country. 

Yours, ^■ery truly, 


E. G. Howes. 


February 15, 1916. 


My Dear Sir: Inasmuch as so many allegations by petition or personal 
statement have been presented to the subcommittee to consider the fitness of 
Mr. Brandeis for the Supreme Court, many of which allege that he is tem¬ 
peramentally unfit to act in a judicial caiiacity, may I take the liberty of con¬ 
tributing an opinion on the other side. My professional work at Harvard has 
for many years required that I keep in close touch with transportation and 
labor matters, and quite aside from personal acquaintance with Mr. Brandeis, 
it has been in the true line of my work to follow every detail of his career. 
Two particular events, in my judgment, prove that Mr. Brandeis, far from lack¬ 
ing the judicial habit of mind, is preeminently fitted to exercise it. The first of 
these is his attitude on the rate advance cases, wherein, as your committee 
has already been so fully informed, he was willing to so far do justice to 
both sides as to concede the need of revenue for the carriers while still fully 
comprehending the interest of the public, which he i-epresented, in low trans¬ 
portation rates. As a warrant for this judgment, and merely in order to give 
it weight technically before your committee, I am taking the liberty of in¬ 
closing a few citations from reviews of certain books on railroads which I have 
published during the last few years. 

The second instance of marked judicial capacity on the part of Mr. Brandeis 
is his record in the New York protocol, covering 50,000 or more garment work¬ 
ers, and. substituting standardized and orderly conduct of a great business for 
chaos and incessant strife. The fact that Brandeis should have been chosen 
as the third member of the arbitration board, which was the capstone of 
the system, and should in that difticult position have continued to promote 
orderly intercourse between capital and labor, is no mean achievement. It 
could by no possibility have been performed by one who did not possess the 
qualities of fairness and nice discrimination as to human rights in the highest 
degree. On this subject also my warrant for expression of opinion is based 
upon a quarter of a century of instruction and writing on labor problems in 
connection with my work at Harvard. 

You will pardon the length of this communication, but it is ditiicult more 
briefly to substantiate the claim which the friends of IMr. Brandeis bring for¬ 
ward in behalf of this candidacy. 

Believe me, very truly, yours. 


WlELTAM L. BiPLEY. 


Hon. T. H. Walsh. 


February 21, 1916. 

Hon. William E. Chilton, 

Chairman Committee on Rrandeiff Nomination, Wastiington D. C. 

Dear Sir: I take the liberty of placing before you copy of telegram which I 
sent to President Wilson immediately after the announcement of his nomina¬ 
tion of Mr. Louis D. Brandeis to vacancy on the bench of the Supreme Court of 
the United States: 

“ The President, 

“ Washington, D. C.: 

“ W)ur nomination of Louis D. Brandeis affords renewed evidence of your 
sagacity, is a fine tribute to his spendid qualifications, and a gratifying recogni¬ 
tion of the confidence in which he is held by the masses of the American people.” 

I may add that for several years I have been in position to gauge with some 
accuracy the views of the people of Boston as a whole and to contrast them with 




NOMINATION OF LOUIS D. BEANDEIS. 117 


those of a much more circumscribed local group mistakenly disposed to regard 
Its own sentiments as those of the entire community. 

Four men chanced to lunch together to-day at one table at one of our prin- 
eii)al clubs. One is president of a prominent Boston savings bank, the second is 
a well-known lawyer occupying a high elective office, the third is one of the 
leading dry-goods merchants of Boston, the fourth (myself) is president of two 
flour milling companies. Among other matters the nomination of Mr. Brandeis 
was discussed. One suggested that those ^^'ho favor his nomination hold up their 
hands and all four men held their hands aloft. 


This is, I believe, much nearer a correct illustration of the views of the people 
of Boston—not to go farther from home—than was the petition recently signed 
here and forwarded for presentation to your committee. 

If the matter were submitted to a vote of our citizens, among whom Mr. 
Brandeis has lived and worked the greater part of his lifetime, I believe the 
majoritj' in his favor would be overwhelming. 

Very respectfully, yours, ' 


Bernard J. Roth well. 




[J. Russel Marble & Co., Worchester, Mass., also 77 I‘earl Street, Boston, Mass. J. Russel 
Marble, Rufus S. Woodward, Charles E. Eager, Arthur E. Nye.] 


Worcester, February 23, 1916. 

Hon. William E. Chilton, 

Chairman Subcommittee Judiciary Committee, 

United States Senate, Washington, D. C. 

Dear Sir : As a merchant of Boston and AVorcester, Mass., and doing a very 
considerable business with the principal paper, woolen, cotton, and other manu¬ 
facturers of New England, I want to state that I believe that a large propor¬ 
tion of the people of New England approve of the nomination of Louis D. 
Brandeis for .Justice of the Supreme Court. 

I have met Mr. Brandeis frequently in lines of work which are for the up¬ 
lift and benefit of the people. His ability is recognized and I believe that he 
has a large degree of judiciary temperament. He is the only lawyer, so far as 
I know, of any particular prominence who has appeared before the Jjegislature 
of Massachusetts in the last 10 years in the interests of the people as a whole. 
The other lawyers have been there, chiefly representing the interests of cor¬ 
porations, whose interests are sometimes inimitable to those of the people. 
The Hon. Robert M. AVashburn, a Republican, and more than five years a 
member of the IMassachusetts House of Representatives, now a member of the 
Massachusetts Senate, himself a lawyer, has approved publicly of Mr. Brandeis’s 
confirmation, as per inclosed interview in the AVorcester Evening Gazette. 

Knowing Mr. Brandeis as I do, and the sentiment of the New England 
people, I believe the court would be strengthened by his confirmation, and the 
respect for the court, if possible, increased among a large part of the com¬ 
munity. 

Very truly, yours. 


J. Russell Marble. 


March 3, 1916. 

Mr. A. Lawrence Lowell, 

President Harvard University, Cambridge, Mass. 

Dear Sir : As a one-time member of the undergraduate body of the university, 
1 feel that I owe it both to the traditions of that institution and to my own 
sense of duty to add my protest to that of the undergraduates who have chal¬ 
lenged your opinion as stated to the Senate committee of the fitness of Mr. 
I.ouis D. Brandeis for service on the Supreme Court of the United States. 

I have some personal acquaintance with Mr. Brandeis. I have a good work¬ 
ing knowledge of his activities in the public behalf during the past 10 years. 
There is no man of his time, in my opinion, who has rendered as valuable service 
to the cause of humanity and progress. He is of Supreme Court stature at all 
times. Under the conditions that prevail to-day in the United States, I believe 
him to be peculiarly fitted for services on that bench. President AVilson has 
made no appointment in his career that so honored him as that of Mr. Brandeis. 
In such a situation, it shocks me that the head of our most illustrious educa¬ 
tional institution should join the clamor of the privileged and predatory in- 




118 


NOMINATION OF LOUIS D. BKANDEIS. 


terests of the country in defaming the reputation of this great lawyer and 
citizen. 

Again I protest—for myself, for the old university ideals of truth seeking 
and service to humanity. 

Truly, yours, 

Stiles P. Jones, 

- Class of *88. 


Hot Springs, Ark., March 12, 1916. 

Hon. Joseph T. Robinson, 

United States Senator from Arkansas, Washington, D. C. 

My Dear Sir : Mr. Malheny, a brother attorney and old schoolmate of yours. 
Informed me that I might use his name as reference in writing to you relative 
to the confirmation of the Hon. Louis D. Brandeis for Supreme Court Judge, 
who was indorsed by our local painters’ union. No. 401, and a copy of the 
resolutions sent to you and Senator James P. Clarke on February 22 by special 
delivery. I wrote Senator Clarke the second time. Imt have never received a 
reply to our resolutions nor my'letters, and as I am originally from New England 
and also know ex-Secretary of the Interior Ballinger and many of the ring that 
attempted to hold up Uncle Sam in Alaska and know Mr. Brandeis did his 
whole duty in that case and rendered invaluable services to the United States 
Government and the people of our country and in that and other cases, and 
that a large majority of the laboring men and law-abiding citizens are in favor 
of your early action and confirming the President’s appointment, I hereby 
again ask you and your colleagues to stay by us and we will stay by you. 

Kindly acknowledge the receipt of this and let me know if you luly received 
a copy of our resolutions, and oblige your humble friend and servant. 

E. E. Neal, 

Box No. 2C, Hot Springs, Ark. 


John P. Herrmann, Jr., Real Estate Co., 

St. Louis, Mo., March 15, 1916. 

To the Members Senate Judiciary Subcommittee, 

Washington, D. C. 

Honorable Sirs : The incloseil copy of my letter to Senator Elihu Root, a 
cojiy of which was mailed to Mr. Barnes, of New York City, explains itself. 

With all due respect to the Hon. William Taft, the ex-President of the 
United States, I beg to call your attention to the fact that he was not above 
accepting the nomination at the hands of the 1912 so-called Republican con¬ 
vention, and that notwithstanding that the platform on which he was previously 
elected as President callexl for a revision of tlie tariff downward, that in place 
of that the people who had voted for him on that platform were given Canadian 
reciprocity instead of a revised tariff. 

If the other gentlemen who are so strenuously opposing the confirmation of 
Mr. Louis D. Brandeis are in the same class, it might be well not to lay too 
much stress on their opinions as to his fitness for that high office. See inclosed 
editorial from Globe Democrat. 

Trusting that you will i-eceive this letter in the friendly spirit in which it is 
sent and will confirm Mr. Brandeis’s appointment, I remain. 

Very truly, yours, 

A. F. Herrmann, 1011 Market Street, 

Delegate to the 1912 Progressive Party Convention, 

And Chairman Twelfth Congressional DisMct of Missouri. 


St. Louis, February 18, 1916. 

Hon. Elihu Root, 

Ndv York City, N. Y. 

Honorable Sir; You will in all probability rec<)gnize the follov/ing matter as 
having been printed on postal cards which were received by various representa¬ 
tive men of the so-called Republican National Convention* held in Chicago 
in 1912. 





NOMINATION OF LOUIS D. BRANDEIS. 


119 


“ Rather than stain the nomination for the high office of President with 
fraud and theft, organize a Progressive Party with the Hon. Theodore Roose¬ 
velt as its head.” 

Now that your State, the Empire State, and your party, the Republican 
Party of your State, has spoken and given you to understand that they did 
not consider you fit timber to fill the position of President, the most honorable 
within the gift of the American people, I sincerely trust that the exalted opin¬ 
ion you had of yourself so dogmatically expressed and displayed while chair¬ 
man of the national Republican Party convention held in Chicago in 1912 has 
somewhat diminished. 

Might does not always make right, and in this case the lesson has been 
driven home to you by your own people in your own State. 

While your nomination for the highest office was a possibility, your election 
to same is an absolute impossibility, as we, the Progressives in the western sec¬ 
tion of the United States, have always resented, nor will we ever forget and 
few of us ever forgive, the treatment you accorded to us while acting as chair¬ 
man. 

Trusting that your forced retirement to private life may be of a pleasant 
nature, I am, 

Very respectfully, yours, 

A. F. Heermann, 1011 Market Street, 

Delegate to the 1912 Progressive Party Convention, 

And Chairman Twelfth Congressional District of Missouri. 


February 18, 1916. 


Hon. William E. Chilton, 

Chairman of Senate Subcommittee, Washington, D. C. 


Dear Sir : Kindly allow me to express my approval of the nomination of Mr. 
Louis D. Brandeis to the Supreme Court. 

It has been my privilege to have had somewhat of an intimate acquaintance 
with Mr. Brandeis for more than a dozen years, during which time I have 
observed his work at close range, both in public and private affairs. I have 
found him to be a man who is keenly active in getting after exact and funda¬ 
mental facts before making a statement regarding any matter in hand, and 
subsequent events have usually proved that his judgment luis been sound. 

I feel sure that his activities have been misinterpreted sometimes as involving 
a radicalism which he did not feel or express, but, on the other hand, his utter¬ 
ances and actions have been of great value to the community in which he has 
lived. 


Yours, very respectfully. 


Chas. M. Cox. 


February 3, 1916. 

Hon. John W. Weeks, 

Washington, D. C. 

My Dear Senator Weeks : Permit me to express the hope that you will not 
hinder the confirmation of Louis D. Brandeis even if you should find that you 
could not vote for him, which I sincerely hope will not be the case. 

Yours, respectfully, 

George W. Coleman. 


February 3, 1916. 

Hon. Henry Cabot Louge, 

Washington, D. C. 

Dear Senator Lodge: With all my heart I hope you will not find it neces¬ 
sary to oppose the confirmation of the appointment of Louis D. Brandeis. 
Nothing would please me more than to see you voting for him. 

Yours, sincerely, 

George W. Coleman. 


March 10, 1916. 

Mr. Ellery Sedgwick, 

ICditor Atlantic Monthly, Jf Park Street, Boston, Mass. 

My Dear Mr. Sedgwick : The report in this morning’s Herald of your sugges- 
fion to President Wilson of the social importance of Mr. Brandeis’s appointment 






120 


NOMINATION OF LOUIS D. BKANDEIS. 


is most (Micoiiraging. With other Harvard men I was mortified by President 
Lowell's part in a stnpid and unfair protest. Such action as yours is welcome, 
for it sets us right in the eyes of people throughout the country who have been 
criticizing Bostonians in general, rather unjustly, for the sad showing we made 
when one of our greatest citizens was given the recognition due him, and recog¬ 
nition is something Mr. Brandeis has never sought. Over the long-distance tele¬ 
phone some of the foremost social workers in New York told me of their indig¬ 
nation at the character of the protest emanating from this city. Fortunately 
we got every social worker in Boston to sign a petition showing how Mr. Bran¬ 
deis really stands with the people and with those who are close to the people in 
this city. Those of us who regard the Atlantic INIonthly as an expression of the 
best in democratic thinking find in your action a new satisfaction in our 
allegiance. 

Sincerely, yours, 

Meyer Bloomfield. 


Cambridge, IMass., February 18, 1916. 

Hon. William E. Chiltox. 

Chairman Subcommittee of Judiciary, 

United States Senate, AVashinyton, D. C. 

Dear Sir : The writer of this letter is a clergyman of the Congregational 
denomination of over 26 years’ standing, most of it in actual service in the Com¬ 
monwealth of l\Iassa(dnisetts; a graduate of Harvard College and most of his 
ministry spent within the limits of the city of Boston. From the'ministry he 
went to the professorship of Applied Christianity at Tufts College, and for .sev¬ 
eral years now has been engaged purely in private literary and educational 
activities. Y'ou will find his history in Who's Who for 1914-1.5, up to my resig¬ 
nation as professor at Tufts, since which I have engaged in writing educational 
books. I am personally known to Senator Hollis, Senator Gallinger, and Sen¬ 
ator Weeks. Any of these gentlemen can give you light as to my standing. 
I think this is also true of Senator Clapp, whom I knew early in my career. 

In these many years in ^Massachusetts I have also been something of a pub¬ 
licist and have engaged in many public activities of the nature of .social and 
political reform, the results of which are embodied in my book on “ Christianity 
and the Social Rage.” My views on present movements, as they respect courts 
and judges, will be found in that volume very fully set forth in the chapter 
entitled ” Social .Justice on the Curbstone.” I think this is sufficient for 
identification. 

I am writing concerning Mr. Louis D. Brandeis. I have known Mr. Brandeis 
for nearly 16 years, being first attracted to him because of his activities as they 
related to .sociological reforms in which I was interested. I became more closely 
acquainted with him in the campaign for savings-bank insurance for poor people 
in this Commonwealth and have kept more or less in touch with him and his 
activities during this entire period. 

In the last 10 years I have lectured extensively in this State, and often 
speak in the course of a sea.son to between 5,000 and 10,000 people of all kinds 
and types throughout the Commonwealth. I think I am in a position to know 
the public estimation of the man as well as almost any man in the State, and 
perhaps better than most, and I am writing to say that I am myself in favor 
of his confirmation as a .lustice of the Supreme Court, and believe that the vast 
mass of the people of this Commonwealth, if they were permitted to express 
an opinion, would be found equally desirous of such action on the part of the 
Senate. I believe that more than any other man in the State Mr. Brandeis 
represents the feeling of liberal-conservative men as being a true and honorable 
embodiment of what has come to be known as “ sociological jurisprudence.” I 
believe that confidence in him is general, and perhaps even greater, becau.se of 
some of the enemies which he has made, some of whom have appeared before 
your committee. The confirmation of Mr. Brandeis would reassure'the people 
of this State and, as I believe, of the United States that a public man devoted 
to the popular interest—meaning thereby the public interest as against private 
and privileged interests—will not debar him from the highest service of the 
country. His rejection would be a distress signal which would, in my judgment, 
be damaging to the courts of the land already under fire in all parts of the land! 

I think I am in position to understand and properly characterize the opposi¬ 
tion to him from Boston and vicinity. It would not be fair to say that it was 



NOMINATION OF LOUIS D. BRANDEIS. 


121 


racial. It would be fair to say that if any man bearing an old New England 
name and practicing at the bar in Boston bad everything which is alleged 
against Mr. Brandeis—alleged against him—and were nominated for the Su¬ 
preme Court, nobody would dream of raising these questions. Many of the 
interests represented by the protesting gentlemen are now, and have been ever 
since I have resided in this Commonwealth, against any emergence into public 
influence and power of anybody not of their number and clan. This is the 
simple truth. 

Long and unchallenged control of everything in the Commonwealth has given 
many of these gentlemen the perfectly natural feeling that whoever is not 
approved by them is ipso facto a person who is either “ dangerous ” or lacking 
in “ judicial temperament.” I have met this in almost every foi-m at public 
hearings of the legislature, of which I have attended a great many. It appears 
not merely in matters like this, but hardly le.ss in philanthroj^ies, the adminis- 
tratiov fif 'mblic institutions, and many other forms of public activity. They 
simply can not realize, and do not, that a long New Iilngland ancestry is not 
prima facie a trusteeship for everything in New England. That is, in my 
judgment, the real spring of most of the opposition, though it must be recog¬ 
nized that it is entirely sincere, and the more sincere because never brought to 
the bar of critical review. 

Doubtless your attention has been called to a recent editorial in the Boston 
Post entitled “A close petition,” showing the comparatively narrow range of 
this opposition. I desire to affirm to your committee that if most of these 
people were brought into any public relation, as most of them have not, where 
a popular estimate of them could be registered the verdict would be so over¬ 
whelmingly against them as to leave no doubt in the mind of any reasonable 
per.son of the restricted area in which they operate. I believe the real feeling 
of this community is one of high regard, amounting in some ca.ses to idolized 
devotion to Mr. Brandeis as a type of man who will bring both honor and 
justice to the Supreme Court of the United States. They love him for the 
enemies he has made. 

In my personal associations with Mr. Brandeis I have always been im¬ 
pressed with his sincerity, his uprightness of view, and his devotion to his 
cause. I believe that as a .Justice of the Supreme Court of the United States he 
would adorn the bench and add to the glory and renown of the greatest court 
in the world. 

Respectfully, yours, 


A. A. Berle. 


To the SUBC'OifMITTEE OF THE JUUICIAKY CoMA[TTTEE 

OF THE United States Senate, 

Wdslihinton, ]). C. 

Genti.emen : We, the undersigned ministers of Congregational chui‘ches in 
Greater Boston, a.s public-spirited citizens, hereby express to you the esteem in 
which we hold IMr. Louis D. Brandeis foi* his groat .service in behalf of the 
workers of the country and for the valiant tight which he has so successfully 
made for civic and corporate righteousness. We wish to bear witness that Mr. 
Brandeis was bitterly attacked several years ago for an addre.ss which he de¬ 
livered before the Boston ministers’ meeting. At that time, in the interests of 
fairness, we opened our platform to his opponents, that they might reply to his 
address and answer any questions which might be asked. This offer was de¬ 
clined. In view of the facts, we are glad that time has vindicated Mr. Brandeis 
in the position which he maintained before our body. 

AVe sincerely trust that attacks from prejudiced quarters will not be allowed 
to defeat his "confirmation as Associate .Tustice of the Supreme Court of the 
United States, and that unless evidence of unfitness not now known is i)roduced, 
he will be S 9 confirmed. 


We, the undersigned social workers in Greater Boston, desire personally to 
go on record in favor of the appointment of Mr. Louis D. Brandeis U) the United 
States Supreme Court. 

In the field of social progress—wherein we have had an opportunity to ob¬ 
serve and measure Mr. Brandeis’s usefulnes.s—we know that his interest and 
untiring ervice in connection with the adjustment of labor differences, his so- 





122 


NOMINATION OF LOUIS D. BEANDEIS. 


cial insight, breadth of mind, and unselfish devotion have won him the con¬ 
fidence and respect of hosts of people in this community and elsewhere. To our 
thinking, he has given evidence of possessing a knowledge and point of view in 
regard to present-day social conditions which should make him a most useful 
member of the Supreme Court. 


[The Pilgrim Congregational Church, Magazine Street.] 

Cambridge, Mass., February 22, 1916. 

Senator Chilton, 

Washington, D. C. 

Honored Sir: Pardon a few words on the Brandeis appointment now before 
you for hearing and report. 

Many of us hereabout are delighted that the President has done the excep¬ 
tionally good thing in his appointment of Mr. Brandeis, and we earnestly hope 
that your honorable committee will recommend that the Senate confirm the 
same. 

At the time of the country-wide discussion of the New Haven Railroad matter, 
and when the public mind was agitated by it, our Boston ministers’ meeting 
heard Mr. Brandeis, who presented the subject from his point of view with great 
fairness, abundant evidence, and brimful and overflowing thoroughness. His 
presentation was not answered openly, though his opponents were urgently in¬ 
vited to reply before our meeting. The only reply was a printed attack on the 
man, which was sent to all our ministers. Being cognizant of these facts I fear 
that some of those now attacking Mr. Brandeis, were they and their methods 
under investigation, would hardly stand the light of day. Big business is surely 
more fully represented on the bench of the Supreme Court already; why should 
not the common people have on that bench such an eminent example of love for 
the public weal? 

I have the honor to be, cordially and sincerely, yours, 

Richard Wright, 

Pastor Pilgrim Church. 


S ' 

v 


Hon. Charles F. Johnson. 


Brunswick, Me., March 6, 1916. 


Dear Sir : I concede that a Senator’s conscience should, and in your case will, 
determine his official act. 

I am aware that the sentiment of a single constituent may not be entitled to 
much consideration and I have hesitated to address you on the subject of this 
letter; but I have reflected that my sentiment may perhaps offset that of an¬ 
other. 

I hope that you will vote for the confirmation of Mr. Brandeis. I think the 
definition of “ a judicial mind ” in our political dictionary should not be “ one 
that stands between corporate rascality and the dispensation of justice.” 

I hope that in future years you may have the satisfaction to reflect that you 
have helped to make one of the greatest and purest judges of that great court. 

Sincerely, yours, 


Henry F. Thompson. 


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